In 2009, the Brazilian Supreme Court (STF) struck-down the Federal Press Act, a law enacted during the country’s military dictatorship period. Since the STF decision, the right to reply was unregulated, but in November 2015 President Rousseff signed into law a bill regulating the said right. Unfortunately, the new law suffers from serious faults.
Under the new law, the exercise of the right to reply jeopardizes the right of news organizations to choose their own content and, more importantly, places a check on the right of citizens to information that is accurate or in public interest. However, the right to reply is not and should not be construed as the right to provide another version of the facts.
Despite the legal uncertainty caused by the lack of regulation of the right to reply, one can unequivocally say that “the cure is worse than the disease.” The new act hurts a news organization’s right to defend itself because it offers a very short period to respond to claims that give rise to the right of reply. For instance, whereas a person or entity that has been allegedly attacked by a news organization or a journalist has 60 days to file a lawsuit, the organization or journalist have only 24 hours to submit a preliminary statement, and three days to gather evidence and submit an answer in writing.
Until now, the shortest statutory time limit in civil cases in Brazil was five days for precautionary measures (injunctions). The new time limit may not be an excessive burden on large news organizations with internal legal departments and processes, but the same does not apply to smaller publishers or blog owners, who, according to the new law, all have the same 24 hours to hire a lawyer, prepare and answer, and file it.
Moreover, the Act created a procedural anomaly: when a response to a right reply is denied by a trial court and an appeal is filed, a “prior collegiate” body consisting of three judges must be heard before a stay of decision is granted. In no other lawsuit in Brazil, not even in the ones involving highly sensitive issues such as child support or class actions, is there a need for a “prior collegiate” body to have a say before a stay of decision is granted. In other civil cases, as a general procedural rule, only one appellate justice decides on whether stay of decision is granted until a final decision is reached. It is hard to imagine how courts will organize themselves to bring together at least three judges, in extremely short time-frames, in order to decide whether a decision should or should not stand.
The new act shows no concern whatsoever for the right to defense of news entities, or for the Brazilian constitutional rights guaranteeing access to information and freedom of the press and expression. The right to reply serves an important role in ensuring credibility of the press, but it should not be guaranteed at the cost of other rights and freedoms.