Case Summary and Outcome

The Supreme Federal Court of Brazil held that the State was 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 while covering a demonstration by civil servants in São Paulo Brazil. 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, and 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.

Silveira 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 (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).

Both Silviera and the State of São Paulo appealed the decision to the 2nd Extraordinary Chamber of Public Law, São Paulo Court of Justice (TJSP).

Judge Vicente de Abreu Amadei delivered the TJSP’s judgment and held that Silveira 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”. [p. 7-8]

Accordingly, the TJSP overturned the court of first instance’s decision and held that the State of São Paulo had no obligation to compensate Silveira.

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

Decision Overview

The Supreme Federal Court delivered a majority decision. Justice Nunes Marques delivered a dissenting opinion. The central issue for the Court’s determination was whether the State of São Paulo was constitutionally obligated to compensate Silveira, in accordance with Article 37, §6 (addressing the State’s responsibility), and Article 220 (freedom of thought, expression and information) of the Brazilian Federal Constitution.

Justice Alexandre de Moraes authored the decision and proposed the legal thesis that was approved by the majority. Due to the significant implications of the Silveira case beyond the specific parties involved, in addition to delivering the judgment, the Supreme Federal Court also established a legal thesis that serves as a precedent for similar cases (“General Repercussion”). Thus, the Supreme Federal Court established the following thesis: “A State’s Strict Liability applies to a press professional injured by police officers during journalistic coverage, in demonstrations with 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)

Justice Marco Aurelio considered the freedom to work under the International Covenant on Economic, Social and Cultural Rights (Article 6); the freedom of the press guaranteed by the Federal Constitution and by international treaties (Article 13 of the American Convention on Human Rights); and a UN manual entitled “Guidance on Less-Lethal Weapons in Law Enforcement”. He held that the State of São Paulo had the obligation to compensate the photographer. Quoting articles 5, IX, XIII, and XIV, and 220 of the Brazilian Federal Constitution, he concluded that the freedom to exercise one’s profession is a fundamental guarantee: “professional activity represents a fundamental aspect in the construction of an individual’s social and collective identity, enabling the full realization of life projects and the recognition of utility and active participation in society.” [p. 10]

Judge Marco Aurelio referred to a decision from the German Constitutional Court (BVerfGE 7, 377) and Brazilian scholars in noting that the TJSP considered conduct inherent to the profession of a photojournalist as sufficient to characterize exclusive fault. He stated that that the TJSP was erred “by stating that the reporter, when seeking photographs of a public demonstration, put himself in a situation of risk or danger”. [p. 11-12]

Justice Marco Aurelio concluded that the TJSP violated the right to professional exercise and the “right-duty” to inform under Articles 5, IX, XIII, and XIV, and 220 of the Federal Constitution when establishing the exclusive fault of the photojournalist.

Justice Alexandre de Moraes concurred with Justice Marco Aurelio’s opinion, emphasizing that the freedoms of assembly, association, expression, and the press are fundamental for the plurality of ideas, a condition for the functioning of the democratic system. [p. 37] He highlighted that the Brazilian Federal Constitution does not allow legislation, the Executive Branch, and, in his opinion, even the Judiciary to threaten the free exercise of freedom of the press (p. 37). In respect of the present case, Justice Alexandre de Moraes concluded that “It is not reasonable to demand that press professionals abandon coverage of public protests in which there is a conflict between the police and protesters” as “this would end up providing incomplete, inaccurate, mistaken news”. [p. 36] He pointed out that risks exist, but the risk would be worse “if the Judiciary understands that journalistic coverage would have no protection, in terms of compensation, if they continue to cover public demonstrations that may generate conflicts”. [p. 36]

Except for Justice Nunes Marques, the other Justices agreed with these opinions.

Justice Edson Fachin emphasized international norms that reinforce the freedom of journalistic information. He referred to Article 19 of the International Covenant on Civil and Political Rights, Article 13 of the American Convention on Human Rights, the United Nations Resolution of September 26, 2016, and the Inter-American Commission Report on Violence against Journalists and Media Workers. All these are directed towards “promoting and ensuring an environment that encourages a free press”. [p. 56]

Additionally, he referenced the Human Rights Council Resolution A/HRC/RES/45/18 (Resolution of October 6, 2020), addressing the prevention of acts against communicators through measures such as police training, enhanced protection for at-risk journalists, and the investigation, prosecution, and punishment of offenses against the press. According to Justice Fachin, non-compliance with these obligations entails the State’s objective liability, meaning it can be held accountable even without proving fault. [p. 56-58]

Justice Luís Roberto Barroso highlighted the role of journalists in exercising the right of each individual to be adequately informed: “When a journalist covers an event, documents a demonstration, even if it eventually degenerates into turmoil, more than exercising their own right, they are exercising a right of the community, in fact, a right of each of us, which is the right to be adequately informed about what is happening”. [p. 76]

Justice Rosa Weber criticized the decision of the TJSP, underscoring that “It is not only about establishing the scope of civil liability but the free exercise of journalism, an essential value, I emphasize, in democracies”. [p. 80]

Justice Luiz Fux discussed the use of non-lethal weapons (“citizen security”). He cited international norms, such as Article 13 of the American Convention on Human Rights, and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, from 1990, to argue that there should be the “improvement of incapacitating, non-lethal weapons for use in appropriate situations, with the purpose of increasingly limiting the application of means capable of causing death or injury to people.” [p. 125]

In summary, the Court concluded that “the State is civilly liable for damages caused to a press professional injured by the police during the journalistic coverage of a public demonstration. The determination of liability is based on the theory of administrative risk, widely accepted by judicial precedent and doctrine.” [p. 1]

Justice Nunes Marques delivered a dissenting opinion, concluding that the present case requires a new examination of evidence “to dispel doubts about whether the victim contributed to the harmful event or not”, which, in his view, cannot be done by the Supreme Federal Court. [p. 68] He stated that “any generalization about the civil liability of the State in its actions to control order at public events is excessive” and that it was irrelevant to bring constitutional norms regarding freedom of the press into the discussion as “the special quality of the victim of damages was not considered by the Constitution for the establishment of the civil liability of the State”. [p. 67-68] He concluded that if the TJSP established that the journalist was solely responsible for what happened, it is not the role of the STF to reexamine the facts or establish a legal thesis for future cases.