Case Summary and Outcome

The Supreme Federal Court of Brazil held that the State is liable for injuries to journalists caused by police action when covering protests. A journalist was hit in the eye by a rubber bullet when covering a protest and lost 90% of his vision in that eye. He sought compensation from the State and was successful in the first instance court. When the second instance court overturned the decision, holding that the State was not liable, he appealed to the Supreme Federal Court. The Court examined the rights to freedom of the press and to work, and the UN guidelines on the use of less-lethal law enforcement mechanisms, and awarded the journalist compensation for medical expenses, loss of earnings and pain and suffering. 

Facts

In 2000, Brazilian photographer Alexandro Wagner Oliveira da Silveira was shot in his left eye while covering a demonstration in São Paulo. During the protest by civil servants on the road, Avenida Paulista, the Shock Troops of the São Paulo Military Police used tear gas bombs and fired rubber projectiles against the demonstrators and other people present at the protest,  Silveira was struck in the left eye by a rubber bullet. He lost 90% of the vision in his left eye and incurred significant medical expenses and his injury impacted on his work as a photographer. 

Siilveira sued the State of São Paulo. In his initial petition, he sought compensation for past and future medical expenses; a lifetime monthly pension in the amount of R$ 1,783.00 (amount based on the photographer’s monthly income); and compensation for pain and suffering of an amount equivalent to 2,000 minimum wages. He provided medical testimony on the nature of his injury. 

The first instance court awarded reimbursement of medical expenses and compensation for pain and suffering of the equivalent of 100 minimum wages (the salary in 2008 totaled R$ 415.00, approximately US$ 166.00 in 2008).

Both Silviera and the State of São Paulo appealed the decision to the Court of Justice of São Paulo (TJSP). Judge Vicente de Abreu Amadei delivered the TJSP’s judgment and held that Silviera had not proven police abuse of excess force. The Court considered the “position of the victim in the midst of the turmoil, between the demonstrators and the police, observing his stay in the conflict site, to take pictures, in a situation of risk or assumed danger, to exclude the responsibility of the public entity”. Accordingly, the TJSP overturned the court of first instance’s decision and held that the State of São Paulo had no obligation to compensate Silviera.

Silveira appealed the decision to the Supreme Federal Court (STF).

Decision Overview

Justice Alexandre de Moraes delivered the decision of the Supreme Federal Court. The central issue for the Court’s determination was whether art. 1st, 5th caput and items IX and XIV, 37, para. 6th, and 220, caput, and para. 2 of the Federal Constitution obliged the State to compensate a photojournalist injured by police during a protest.

The Court considered the freedom to work under the International Covenant on Economic, Social and Cultural Rights; the freedom of the press guaranteed by the Federal Constitution and by international treaties; and a UN manual entitled “Guidance on Less-Lethal Weapons in Law Enforcement”.

The Court held that the State of São Paulo had the obligation to compensate the photographer. The Court established the position as: “The State’s civil liability is absolute in relation to a press professional injured by police agents during journalistic coverage, in demonstrations in which there is turmoil or conflicts between police and protesters. It is up to the exclusion of responsibility of the exclusive fault of the victim, in the hypotheses in which the press professional fails to comply with an ostensive and clear warning about access to delimited areas, in which there is a serious risk to his physical integrity” [p. 2-3].