Case Summary and Outcome

In July 2009, the Court of Appeals of Federal District issued an injunction against the daily newspaper O Estado de Sao Paulo, banning it from publishing reports containing information from a corruption investigation involving businessman Fernando Sarney, son of former President José Sarney.

In December 2009, the Federal Supreme Court of Brazil denied an appeal brought by S.A. O Estado de São Paulo, the owner of the daily newspaper against the injunction. The Court also found that the previously granted procedural remedy was inappropriate because the case did not fall under its precedent established in ADPF 130-DF, where it had declared the Press Act unconstitutional.

The Supreme Court remanded the case to the Court of Appeals of the Federal District for further consideration in light of its ruling. The Court of Appeal’s final decision is currently pending.

Facts

On July 22, 2009, O Estado de São Paulo daily newspaper published an article linking Fernando Sarney to a political scandal, Senate Secret Acts (acts that had not been published by the official press). The newspaper reported that according to a phone tap obtained from an undercover criminal investigation, Mr. Sarney was influenced by the former head of the Senate Agaciel Maia to hire the boyfriend of his daughter who was named by the Senate Secret Act four days after the phone call.

On July 27, 2009, Sarney filed a lawsuit requesting an injunction to prevent the newspaper from publishing any information based on the criminal investigation. He argued that  any reporting would be a violation of a federal act that addresses crime within the judiciary, along with a claim that any reporting would be defamatory and be a violation of the right to privacy.

During the initial court proceedings, the Court of Appeals of Federal District overruled the injunction, highlighting the importance of the constitutionality-protected freedom of expression, particularly the right to access information, given the fact that the information disclosed by the newspaper was widely known and published. Sarney then appealed the decision and obtained a court order against the newspaper. The injunction was granted on the grounds that the disclosure of information obtained in an undercover criminal investigation could expose his public status to potentially serious and irreparable damages concerning his image and privacy.

Decision Overview

On appeal before the Federal Supreme Court of Brazil, the newspaper argued that the injunction was contrary to what the Court had established in ADPF 130-DF, declaring the Press Act unconstitutional and reaffirming the underlying principles of the right to freedom of expression.

On December 12, 2009, the Supreme Court dismissed the claim, stating that such remedy did not fit in the constitutional analysis in ADPF 130-DF because the cases were factually different. The Court found that publishing the information obtained through a criminal investigation violated Sarney’s rights of personality and privacy under Article 5 of the Federal Constitution.

The Court found that the newspaper’s claim was incorrect because there was no connection between the ADPF 130-DF and the facts presented in the current case. While in the former case, the Court stressed the importance of protecting the press in cases of conflict between privacy and the right to freedom of expression, it concluded that one right should not be given more weight over the other and that they both must be analyzed in an equal playing field.

Justice Carlos Britto, who wrote the majority in ADPF 130-DF, dissented. He stated that Articles 61 to 64 of the unconstitutionally-declared Press Act addressed the concern over judicial censorship and that the present case was in fact about judicial censorship, the main reason for declaring the Act unconstitutional. According to him, issues regarding the press raise core values of freedom of expression, and legislatures and judges cannot limit the core values protected by the Constitution. Finally, Britto stated that the decision issued against the newspaper was a surreptitious application of the Press Act.

Justice Eros Grau mentioned Karl Marx to state an idea that censorship is a matter of absence of law; whereas judges may apply the rule of Law, judicial censorship would be counter intuitive. Following these lines, the present case was not about censorship, but, instead, about the application of the rule of law.

According to Justice Celso de Mello, the role of the press in a democratic society is crucial and criticism is an inseparable part of this role, even more so when public interest is involved and the criticized figure is a public official.

The Supreme Court remanded the case to the Court of Appeals of the Federal District for further consideration in light of its ruling. The Court of Appeal’s final decision is currently pending.