Brazil does not yet have a firmly established tradition on freedom of speech cases. This may be due to the country’s colonial origin, or to the alternation between dictatorial and democratic systems of government (1) all through its history. The fact is that discussions about freedom of speech issues are fairly recent. This is mirrored by oscillating decisions of the Courts, sometimes favoring and sometimes limiting freedom of press.
Provisions protecting freedom of speech from any kind of prior restriction or censorship were included in the 1988 Constitution, which is currently in force. Article 5, IV, IX, and XIV, and Article 220 enshrined the principle of freedom of information in Constitution of the Federal Republic of Brazil, thus ensuring there is no embarrassment, restriction, or censorship to its exercise. These articles expressly guarantee freedom of thought, freedom of speech, and freedom of communication, – regardless of any form of censorship or license –, and access to information.
Although the 1988 Constitution has ensured the above principles, the freedom of speech principles coexisted in Brazil for more than 20 years with the Press Act, which was enacted during the military dictatorship period (2). An important milestone in the history of freedom of speech in Brazil was the ADPF 130 (3) decision, in which the Supreme Court sitting en banc, struck down the Press Act as unconstitutional.
At the time of judgment, the Supreme Court understood that the Federal Constitution provides for unbridled freedoms of thought, creation, speech, information, and press, and that these freedoms are not subject to any provisions other than those under the Constitution itself. For this reason, the Brazilian Supreme Court ruled that the Press Act had not been received by the 1988 Constitution. According to the decision, the constitutional framework rules out any kind of limitation to the freedom of thought and to the free circulation of news and information. In other words: freedom of speech is full and unrestrained. However, in the event of violation of privacy and honor (libel and slander), the issue is resolved a posteriori through civil and criminal liability. The Brazilian Supreme Court ADPF 130 decision is a reference to all other court decisions in the country.
To this date, however, there has been judicial controversy resulting from the interpretation by the courts of four articles (Articles 12, 17, 20, and 21) of the 2002 Civil Code (4). These articles have created havoc stirred by poorly reasoned judgments. In general terms, these articles give authority to the courts to prevent the violation of privacy, or issue orders to remove threats to the rights of the person (offense to one’s honor, name, and reputation). As a result, the 2002 Civil Code opened up a gap for interpreting the law in the sense that news stories be suppressed or require approval prior to being published. Of course, this interpretation cannot be upheld in the light of the Federal Constitution, but there are still judicial decisions, especially from the lower courts, which insist in this kind of control, even though said decisions are becoming increasingly rare.
Moreover, it is worth noting that with regard to freedom of information, many government entities are not transparent in disclosing their data. In a not too distant past, media outlets in Brazil were required to bring legal action to obtain data from government entities in order to disclose them to the public. After several years of citizen engagement in fighting for government agencies to reverse this scenario Law # 1227 was enacted in 2011. The statute regulates the constitutional right of access to government information. The law came into force in May 2012 and created mechanisms that enable any person or entity, without the need to provide a reason, to obtain public information from government entities.
The statute applies to the three powers (the Legislature, the Executive, and the Courts) of the Federal, State, and Local Governments, and to the government of the Federal District. Not-for-profit private entities that receive public funds are also required to publicize information concerning the receipt and allocation of government resources. This law has made it mandatory for government to be transparent, thus enabling the right to information to be exercised broadly. Law # 1227 has rendered it unnecessary to resort to the Judiciary. Currently, whenever there is a lawsuit claiming access to government information, the Courts, with very few exceptions, have granted the requests.
It ought to be stressed that in such cases, there is an obvious individual interest on the part of the media outlet to obtain the information in order to publish it. In addition, there is also a collective and general interest, since citizens have the right to be informed about matters of public interest.
Another point worth emphasizing concerns the use of the internet in Brazil. In June 2014, Law # 12 965 came into force, establishing principles, guarantees, and rights for the use of the internet in the country. Because of its relevance, this statute was called the Brazilian Civil Rights Framework for the Internet. It aims at securing the rights and liabilities concerning the use of digital media. And its focus, therefore, is to provide a legal framework that protects rights, and not a framework that limits freedoms.
The absence of a statute regulating the internet used to cause a great deal of legal uncertainty over the outcome of lawsuits. Very important issues concerning the use of the internet in Brazil, such as the net neutrality, have been addressed by this law. With regard to the freedom of speech the most noteworthy provision establishes that content can only be removed from the internet with a court order.
Brazilian courts and scholars had long been discussing whether content should be removed from the internet without a judicial order, that is, by mere communication to the internet service provider. Some judges understood that on occasions when there were sufficient grounds to consider the content offensive and, after receiving notice from the party, if the provider did not remove the alleged offensive content, such provider could be sentenced to pay a fine. Law # 12965 put an end to this debate. Today, the internet service provider is only required to remove online content as a result of a court order. Exception is made in cases of blatantly illegal content, such as pedophilic content, when the provider must take action to remove such content as soon as it becomes aware of it.
This was an important statutory development in terms of freedom of speech, a development which will directly transform the decisions of the courts, because the new statute harmonized the interpretation of the Law. In fact, it would be potentially dangerous to create a duty to remove online content as a result of mere notification. Imposing internet providers the duty to remove content without resorting to the courts could lead to censorship, since assessing subjective interests, in terms of their offensive nature or in terms of pain and suffering is very complex and requires an analysis of the context of the publicized content, which is not always possible for the provider. Moreover, it would not be equitable to impose the exceedingly difficult task of determining what can or cannot be publicized on the web on the provider.
The challenge, as of now, is to enjoy and respect the mobilization of citizens in order to upkeep the principles that govern this new law. One of the statute’s goal is to foster freedom of speech on the internet, and this needs to be strengthened. Moreover, it is important to note that it was precisely the topic of freedom of speech that stirred debates during the course of the bill in Congress.
Finally, one last and necessary remark: in Brazil, the Courts are tortuously slow to hear cases. There are cases, as some of the ones examined below, which were filed 10 years before achieving a final decision. The delay in the resolution of conflicts does not occur across the country in a uniform manner. However, this is the unfortunate situation in the state of São Paulo, the wealthiest state in Brazil, and whose population has the highest schooling rate in the country. The lack of speediness is a problem legal practitioners face, and one that directly impacts the cases below.
1 Check timeline with information on the main legal texts that have affected freedom of speech and freedom of press in Brazil since 1808, in Luís Francisco Carvalho Filho paper: “Dois séculos de imprensa – Linha do tempo dos embates da liberdade de expressão no Brasil”, Revista de Jornalismo ESPM (Brazilian edition of the Columbia Journalism Review), Year 1, Number 2, Jul/Ago/Sep 2012, pp. 58/61.
2 Law # 5 250 issued in 1967, during the military dictatorship period and effective until 1984.
3 ADPF – Arguição de Descumprimento de Preceito Fundamental [Claim of Breach of Fundamental Precept]. The decision and the case summary have been submitted to the Global Freedom of Expression Case Law Library.
4 The full text of the Brazilian Civil Code is available at http://www.planalto.gov.br/ccivil_03/leis/2002/l10406.htm.
To read the complete paper, please download the PDF version.