Case Summary and Outcome

The Brazilian Superior Court of Justice held that a politician was entitled to protection of the right to be forgotten when a newspaper published an interview in which he was accused of previous terrorist activity. The politician had applied to the lower court for damages, arguing that he had been cleared of all charges relating to the terrorist act referred to in the newspaper article. The court of first instance 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, holding that “the protection of the dignity of the human person in the information society includes the right to be forgotten”.  A special appeal, brought by the newspaper, is pending.

Facts

A local newspaper in Pernambuco, Brazil, Diário de Pernambuco, 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, including a bombing of Guararapes Airport in Recife, Pernambuco in July 1966. Zarattini had been cleared of all charges in the 1980s. Zarattini filed a lawsuit for compensation for moral damages against Diario de Pernambuco in the Pernambuco State Court of Justice. Zarattini 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, on the basis of articles 186 and 927 of the Civil Code.

In 1997, the First Instance Court ordered the newspaper to pay 700,000.00 reais, holding that “the newspaper did not adopt the necessary reservations in order to preserve the moral integrity of the plaintiff”. The Court referred to the historical controversy over the Brazilian dictatorial regime and the general Amnesty Law (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 an allegation of Zarattini’s guilt “was not supported on material grounds”, and so Zarattini’s public image was violated, justifying  compensation.

The newspaper appealed the decision to the Second Instance of Pernambuco State Court (TJPE), which overturned the First Instance decision. That Court held that the right to honor and image must be compatible with the right to information and freedom of expression, in such a way that the 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”. 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. That 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. 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”.

Zarattini appealed to the Superior Court of Justice.

Decision Overview

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 “AP” and he was never a member of this organization. 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 Court 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”.

The Court stressed the need to respect the right to be forgotten “as a modern principle of civil liability”. It held that “unequivocal proof of the publication’s mala fides (bad faith) is unnecessary for liability”, 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”.

The Court 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”.  It referred to the Enunciation 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”.

Accordingly, the Court granted the Special Appeal, partially maintaining the lower court ruling, but reducing compensation to the amount of 50,000.00 fifty thousand reals (approx. $16,000 USD at the time). 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 “without reasonable motive for suspicion of falsehood”.

Diário de Pernambucos has appealed to the Federal Supreme Court (STF), through a Recurso Extraordinário (RE), and the matter is pending (as of June 2022). The appeal is permissible because the newspaper argues that the decision of the Superior Court of Justice which affirmed the newspaper’s liability (to pay damages for the publication of an interview) infringes the Constitution as it does not preserve the right to freedom of expression. The Supreme Court will analyze whether the constitutional issue is subject to general repercussion – that is whether or not the issue debated is relevant from an economic, political, social or legal point of view. If it is not, the appeal will be rejected without merits analysis. If it is, the main constitutional statement of the “theme of general repercussion” – the thesis decided in the Court decision – will apply to all other cases in the Brazilian jurisdiction which involve the same constitutional issue.

A rapporteur is assigned to the appeal, who issues an opinion which is submitted to the Court plenary to decide the thesis. In the present case, the rapporteur – Justice Marco Aurélio – suggested the following thesis: “[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”. Justice Alexandre de Moraes 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.”

The RE was suspended as other Justices requested to review the matter, and so the matter is still pending without a thesis having been established.