Content Moderation, Intermediary Liability, Privacy, Data Protection and Retention, Religious Freedom
J20 v. Facebook Ireland Ltd
Closed Contracts Expression
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The Supreme Federal Court of Brazil ruled that media companies can be held civilly liable when publishing an interview in which an interviewee falsely accuses a third party of committing a crime. A Brazilian newspaper had published an interview accusing a politician of terrorist activity in the past and the politician sought damages in the lower court, arguing that he had been cleared of all charges related to the terrorist act mentioned in the newspaper article. The first instance court found that the politician’s public image was damaged and ordered the newspaper to pay damages. The appellate court emphasized the right to information and overturned the lower court’s decision. On appeal, the Superior Court reinstated the first instance court’s order. The Supreme Federal Court imposed limitations on the freedom of the press and freedom of expression, affirming that the politician, who had been cleared of all charges related to the alleged terrorist act, was entitled to protection of the right to be forgotten when a newspaper published an interview linking him to such activities. It stated that civil liability will depend on whether, at the time of publication, there were concrete indications of the falsehood of the accusation, and the media outlet failed to observe the duty of care in verifying the truth of the facts and in disclosing the existence of such indications.
On May 15, 1995, Diário de Pernambuco, a local newspaper in Pernambuco, Brazil, published an interview in which an individual, Wandekolk Wanderley, claimed that Ricardo Zarattini Filho – a political figure and former congressman – had been guilty of terrorism against the former dictatorial military regime (1964-1985), including a bombing of Guararapes Airport in Recife, Pernambuco in July 1966.
Zarattini had been cleared of all charges in the 1980s.
In August 1995, Zarattini filed a lawsuit for compensation for moral damages against Diário de Pernambuco in the Pernambuco State Court of Justice. He argued that the publication of the interview had violated his honor and human dignity, under articles 5º, X, and 1º, III, of the Federal Constitution, and constituted unlawful conduct, based on articles 186 and 927 of the Civil Code.
In 1997, the First Instance Court ordered the newspaper to pay Zarattini BRL 700,000.00, finding that “the newspaper did not adopt the necessary reservations in order to preserve the moral integrity of the plaintiff”. [p. 4 of the First Instance Court’s decision] The Court referred to the historical controversy over the Brazilian dictatorial regime and the general Amnesty Act of 1979 (in relation to both the perpetrators and enemies of the dictatorial state) as reasons why the newspaper should have been especially cautious about the publication of the allegations. The Court accepted that the allegation of Zarattini’s guilt “was not supported on material grounds”, and so Zarattini’s public image was violated, which justified compensation. [p. 4]
The newspaper appealed the decision to the Second Instance of Pernambuco State Court (TJPE), which overturned the First Instance Court decision. That Court held that the right to honor and image must be compatible with the rights to information and freedom of expression, in such a way that an article, “which only seeks to bring information” can be considered abusive and cause injury to the person being reported “only when it treats the case lightly”, that it when it does not give the subject matter the necessary respect. [p. 17 of the Court of Justice decision] The publication of an interview with a third party about a “controversial” historical fact was not considered as “a defamatory matter or even harmful” to Zarattini. [p. 20] The Court stated that “the liability of communication vehicles occurs when it publishes news that it knows to be false” and that Diário de Pernambuco did not intend to harm Zarattini’s honor and morals. [p. 23] The Court concluded that, when weighing the conflicting constitutional values of the right to freedom of information and the right to the inviolability of one’s honor, the right to freedom of information should prevail, especially “given the unequivocal public interest brought upon by the case”. [p. 25]
In 2011, Zarattini appealed to the Superior Court of Justice. The case was heard by the third panel of the Superior Court of Justice with Justice Paulo de Tarso Sanseverino as justice rapporteur. Justices Marco Aurélio Bellizze and Marco Buzzi voted with Justice Paulo de Tarso Sanseverino. Justices Ricardo Villas Bôas Cueva and João Otávio de Noronha dissented.
The main issue before the Court was whether the newspaper infringed Zarattini’s human dignity and honor and his right to be forgotten, or whether the newspaper was protected by the right to freedom of expression.
Zarattini argued that his personality rights had been infringed by the false attribution of criminal activity to him (slander), which resulted in considerable moral damages. He argued that the investigations on the bomb explosion at the airport and the subsequent criminal prosecution had resulted in an acquittal. Zarattini added that the attack was conducted by an organization of which he was never a member. Zarattini submitted that the newspaper’s conduct was unlawful either by voluntary action or through negligence and imprudence, which raises a legal basis for seeking damages, under arts. 186 and 927 of the Civil Code.
Diário de Pernambuco argued that the publication was merely informative and that the interviewee’s statements were spontaneous, having occurred without any prompting from the reporter responsible for the interview. It submitted that holding newspaper companies accountable for third-party allegations in publications would unduly restrict the right to freedom of press.
The Superior Court of Justice emphasized that freedom of the press should be limited by the constitutional right to human dignity. It noted that it is possible for the news company to control the content of the interview and that “the facts narrated in the news article are covered by the Amnesty Act, inspired by the idea of social pacification”. [p. 31] The Court stressed the need to respect the right to be forgotten “as a modern principle of civil liability”. [p. 32] It held that “unequivocal proof of the publication’s mala fides (bad faith) is unnecessary for liability” [p. 38], and that the newspaper did not produce “fundamental proof that the interviewee effectively stated that the appellant had participated in the attack at Guararapes Airport”. [p. 41]
The Superior Court of Justice held that the newspaper “cannot neglect their commitment to the veracity of the facts or take a careless attitude when disclosing facts that may tarnish the moral integrity of third parties, especially when dealing with serious facts duly ascertained at their time”. [p. 29] It referred to the Enunciation (Decision) no. 531, of the VI Journey of Civil Law of the Superior Court of Justice that stated: “The protection of the dignity of the human person in the information society includes the right to be forgotten”. [p. 37]
Accordingly, in 2016, the Superior Court of Justice granted the Special Appeal, partially maintaining the lower court’s ruling, but reducing compensation to the amount of BRL 50,000.00. The Court based its decision on the right to be forgotten arising from the Amnesty Act in this specific case, and on the argument that freedom of information cannot be used as a shield for irresponsible acts. In a dissent, Justice Ricardo Villas Bôas Cueva stated that the press should not be liable for third party statements it may publish, as the newspaper did not impute any crime to the appellant.
In 2017, Diário de Pernambuco appealed to the Supreme Federal Court, through an Extraordinary Appeal (Recurso Extraordinário). The appeal was permissible by law because the newspaper argued that the decision of the Superior Court of Justice, which affirmed the newspaper’s liability (to pay damages for the publication of an interview) infringed the Constitution as it did not preserve the right to freedom of expression.
The National Newspaper Association (Associação Nacional dos Jornais) filed an amicus brief with the Court in support of Diário de Pernambuco.
The Supreme Federal Court analyzed whether the constitutional issue is subject to general repercussion – that is whether the issue debated is relevant from an economic, political, social or legal point of view. Had it been deemed unworthy of review, the appeal would have been rejected without analysis of its merits. It was deemed worthy, therefore the main constitutional statement of the “theme of general repercussion” – the thesis decided in the Supreme Federal Court decision – will apply to all other cases in the Brazilian jurisdiction which involve the same constitutional issue.
On May 18, 2018, the Supreme Federal Court, in a unanimous decision, determined that the matter was a “theme of general repercussion” and should have a decision issued by the Court. The trial was initiated on May 29, 2020 and began on August 14, 2020.
In Brazil, a rapporteur is assigned to the appeal, who issues an opinion which is submitted to the Court plenary to decide the thesis. Justice Marco Aurélio, the rapporteur, accepted Diário de Pernambuco’s appeal and suggested the following thesis for the theme of general repercussion: “[a] newspaper company is not liable when, without issuing an opinion, it broadcasts an interview in which the interviewee attributes an illicit act to a certain person.”
On the other hand, Justice Fachin denied the newspaper’s appeal and suggested the following thesis for general repercussion: “compensation for moral damages by the journalistic company is only due when, without applying protocols for seeking objective truth and without providing an opportunity for the right of reply, it unilaterally reproduces accusations against a former political dissident, attributing to him a crime committed during an exceptional regime.”
On the second day of the trial Justice Alexandre de Moraes also rejected the newspaper’s appeal, but suggested a different thesis: “The full constitutional protection of freedom of the press is enshrined in the binomial freedom with responsibility, not allowing any kind of prior censorship, but admitting the later possibility of analysis and liability for information proven to be injurious, defamatory, slanderous, lying. Regarding possible damages, the rights to honor, intimacy, private life and one’s own image shape the constitutional protection of the dignity of the human person, and safeguard an intimate space that cannot be overcome by unlawful external intrusions.” Justices Dias Toffoli and Ricardo Lewandowski’s opinions agreed with this thesis.
Justice Rosa Weber agreed with Justice Marco Aurelio’s opinion and Justice Cármen Lúcia agreed with Justice Fachin.
The trial continued on June 30, 2023, when, by majority, the Brazilian Supreme Court denied the newspaper’s appeal. Justices Fachin and Weber delivered dissenting opinions.
Regarding the thesis, the Court reconvened on November 29, 2023, delivering its unanimous decision that serves as a binding precedent without the possibility of new appeals.:
“1. The full constitutional protection of freedom of the press is enshrined in the combination of freedom with responsibility, with any form of prior censorship prohibited. The possibility of subsequent analysis and accountability is admitted, including content removal, for information proven to be injurious, defamatory, slanderous, or false, and in relation to potential material and moral damages. This is because the right to honor, privacy, private life, and one’s own image form the constitutional protection of human dignity, safeguarding an inviolable intimate space from unlawful external intrusions. 2. In the case of the publication of an interview in which the interviewee falsely imputes a criminal act to a third party, the journalistic entity can only be held civilly liable if: (i) at the time of publication, there were concrete indications of the falsity of the imputation, and (ii) the media outlet failed to exercise due care in verifying the veracity of the facts and in disclosing the existence of such indications.”
The full opinions have not been officially released, and once the Brazilian Supreme Court makes them available, we will update this page.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In holding that the freedom of the press to publish third party opinions (or fact descriptions) is dependent on a media outlet’s own, complex evaluation of the consequences of publishing, including the possible applicability of undetermined legal standards and critical reflection on the result of the publication on personality rights, the Court restricted the ability of the media to report freely. The complexity and, sometimes, indeterminacy of criteria for content publication may result in a higher level of self-censorship by the media – which has constricting effects on freedom of expression and freedom of press.
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