Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Mixed Outcome
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The Brazilian Superior Electoral Court (TSE) granted an injunction in favor of Dilma Vana Rousseff (the current President of the Republic who was up for reelection), granting Rousseff the right to reply to Veja Magazine’s new article. The news article accused Rousseff and former President Lula da Silva of knowing details relevant to Operação Lava-Jato, a deeply rooted corruption scandal that plagued Brazil. The Court found that the information published in the article was based solely on pieces of a testimony which facts could not be proven. Hence, the widespread publication could unjustly skew the results of the 2014 Brazilian Presidential Elections and the injunction was a proper remedy.
Columbia Global Freedom of Expression could not identify official legal and government records on the case and information on the case was derived from secondary sources. It must be noted that media outlets may not provide complete information about this case. Additional information regarding legal matters will be updated as an official source becomes available.
On October 24, 2014, Veja Magazine was released digitally and distributed by newsstands with a front page showing the partial faces of Ms. Rousseff, the current President and candidate for reelection, and Mr. Luiz Inácio Lula da Silva, the former Brazilian President. The title of the article was “They Knew Everything.” On the front page, the magazine stated that Mr. Alberto Yousseff, the whistle-blower in the corruption investigation of a Brazilian biggest oil company (Petrobrás), testified that both the current and former President had knowledge of the Petrobrás scandal.
On October 25, 2015, J. Gonzaga granted the provisional injunction, ordering Veja Magazine to provide the right of reply to Ms. Rousseff and others who may have been defamed by the news article.
The Magistrate, whose opinion relied on a prior opinion from the Electoral Public Prosecutor, used precedent from the TSE to establish that the right of reply is an exercise of freedom of expression and not necessarily a sanction. The court, however, can only employ a right to reply when the information published is known to contain untruthful news or accusations of serious offenses (Representação 1.312-17).
Going forward, although jurisprudence recognizes the right of the publisher to assume certain electoral preferences during the campaign period, and the public interest is always inherent to any journalistic critic – being, hence, immune of any prior restraint – the freedom of the press is limited by other fundamental rights possibly conflictive. Notwithstanding, that the press has no absolute right to defame or act libelous. In this case, J. Gonzaga clearly understood that even the title of the Magazine was offensive and lead to strong repercussions to fair election processes.
The fact that the news article was based just on one testimony not justified by any other evidence to support serious accusations configures slanders, once, according to the news report, Ms. Rousseff has committed at least the crime of prevarication. Additionally, the fact that the magazine was distributed two days before this ordinary distribution, two days before elections showed clear intent to affect the electoral process. Therefore, according to the court, the right of reply must be granted.
Immediately after the publication, Ms. Rousseff, her electoral colligation and the Labor Party filed a claim with TSE seeking to obtain the right of reply, alleging that: (i) just a piece of Mr. Youssef’s testimony was not substantial proof of Ms. Rousseff and Mr. Lula’s actions, the testimony should of have to come under scrutiny of the Brazilian Supreme Court not just by a first instance judge to be circulated; and (ii) Veja’s decision to distribute the magazine two days earlier than usual, by releasing the cover story on a Friday rather than the typical Sunday, establishing Veja wanted the cover story to circulate two days prior to the elections with the intent to unduly influence election results.
The Plaintiffs further alleged, that there was an important precedent (Reclamação n. 18.735) applicable to the case at hand. In Reclamação, the Supreme Court deemed a certain news report abusive, based on a testimony issued in a whistle-blowing agreement that was not judicially approved and confidential. Furthermore, it was alleged that Mr. Youssef’s lawyer believed that his client accused Ms. Rousseff and Mr. Lula, according to a news report published on the website of O Globo. Finally, the court stated that the right to inform could not serve as a pretext to violate the rights of the individual, such as the honor of both politicians.
The Electoral Public Prosecutor give his opinion and considered that Veja has abused its RoI in an offensive with suspicious intent by accusing Ms. Rousseff and Mr. Lula of knowing a criminal fact regarding one of the most controversial facts raised and discussed during the presidential election. According to him, the fact that the news report was available two days before the election and the ordinary distribution of the magazine showed the magazine’s intent to affect the election. J. Admar Gonzaga was assigned the provisional injunction claim.
On October 25, 2015, J. Gonzaga granted the requested injunction ordering Veja to provide the right of reply to Ms. Rousseff and the other plaintiffs.
The Magistrate, whose opinion was fully based on a prior opinion from the Electoral Public Prosecutor, started by stating precedent from TSE considering the right of reply as an exercise of the freedom of expression, and not a sanction, but only when the information published contains untruthful information or accusations of a serious offense that is known to be false (Representação 1.312-17).
Although the Court recognizes the right of a publisher to assume certain electoral preferences during the campaign period and the public interest is always inherent to any journalistic critic – immune to any prior restraint – the freedom of the press is limited by other fundamental rights that may possibly conflict. Notwithstanding, the press does not have an absolute right to offend. In this case, J. Gonzaga clearly stated that even the title of the magazine was offensive on its’ face and leads to strong repercussions on the electoral process.
The fact that the news report was based just on a single testimony and not backed by other evidence to support the serious accusations establishes slander. According to the news report, Ms. Rousseff has committed at least the crime of prevarication and this accusation must be backed by something more than a flimsy dissected testimony. Additionally, the fact that the magazine was distributed two days before this ordinary distribution, two days before elections configured the clear electoral purpose. Therefore, the right of reply must be granted.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
It is true that the right of reply is a form of expression that is a legitimate fundamental right enumerated in the Constitution and imposed upon the press whenever cases of abuse are verified. If the news report was not false nor even reckless disregard or actual malice were proved, the press would not be subject to a right to reply. In such cases, the Supreme Court grants monetary compensation in a form of damages. In some instants, the Court could grant an emergency injunction and it could be adopted without the necessary care in analyzing all the facts involved.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision could be used as a precedent to be applied to analogue cases, mainly those in which the press publish criminal accusations and malpractice of public candidates simply based on testimonies of whistle-blowers.
Let us know if you notice errors or if the case analysis needs revision.