In Brazil, outdated defamation laws and costly court cases used to pressure criticsTravel
Brazilian journalist Erik Silva never imagined that printing information from a municipal government website would see him accused of defamation and lead to a drawn-out court case. But almost a year after writing about the size of salary earned by a municipal accountant in Corumbá, a city of just under 100,000 people on Brazil’s western border with Bolivia, he is still fighting to clear his name.
Silva said he did some digging on the transparency section of the government’s website and noted that an accountant, Julio Cesar Bravo, earned 45,769.87 reais ($14,788.15) in March 2016. The accountant’s pay for that month was well above the norm for government employees and more than Brazil’s Supreme Court justices, he said.
Silva said he did not name the accountant in his April 2016 piece for Folha MS, a paper with a weekly print run and a daily online edition, but later that month Bravo–who denies wrongdoing–used Brazil’s defamation laws to sue him for sullying his image.
“It’s a way of trying to stop me publishing these kind of details,” Silva told CPJ. “He could have sued the newspaper but he sued me to make it personal–and in a criminal court. It’s an attempt to criminalize what journalists do.”
A judge ruled for Silva in December, but the accountant has appealed, forcing Silva–a 34-year-old editor of a three-person paper–to spend countless hours and more than $1,300 of his own money to defend himself.
The case is indicative of an increasingly serious freedom of speech problem facing Brazil’s journalists and bloggers.
Under legislation dating from the 1940s individuals can sue for “calúnia” if they feel they have been unfairly accused of committing a crime; “injúria,” a more subjective offense that can be used by persons who feel emotionally or psychologically hurt by opinions; and/or “difamação,” which is similar to defamation.
Anyone in authority, such as police or judges, can also charge citizens who challenge them with “desacato”–insulting a public officer or refusing to comply with orders. The maximum penalty for the charges range from six months for “injúria” to two years for “calúnia” or “desacato.”
In a January report, “Violence against Journalists and Freedom of the Press in Brazil,” the National Federation of Journalists (Fenaj), an umbrella group of regional labor unions, found that the number of cases of journalists subject to such judicial action, including civil defamation cases, doubled to 18 last year from nine in 2015. Bloggers accounted for many more.
In some cases, more than one journalist is targeted, such as in Paraná state where, as CPJ documented last year, dozens of identical or near identical civil suits were launched by judges, magistrates, and district attorneys against five staff members at the Gazeta do Povo newspaper. The cases are ongoing, the paper said.
“We noted an increase in 2016 compared to 2015 and not only by politicians,” Fenaj president Maria José Braga told CPJ from the capital, Brasilia. “There is now a large number of judges, public prosecutors and attorneys trying to stop information from getting to the public. That is worrying because the judicial system should be there to help guarantee freedom of the press and freedom of expression and yet it has been an agent of intimidation.”
Even more worryingly, judges are cracking down and sentencing journalists to jail time for such cases.
“Up until recently, they were usually converted into alternative sentences but last year there were more prison sentences,” Braga said. “One journalist was sentenced to time in a minimum security jail but allowed to serve at home because there were no prison places available; a second is only not serving a custodial sentence because he is over 70 years old; and in Alagoas state two journalists are waiting to serve their sentences at any time.”
Suits designed to limit freedom of expression are widespread, with the media themselves even resorting to their use.
Luis Nassif, a left-wing blogger who says his forthright views have made him the target of several suits including some filed by news outlets, said it was an unequal fight. “This is part of the model,” Nassif told CPJ. “They have tremendous power with lawyers and money. It’s not a war of arguments. It’s an attempt to suffocate you.”
Brazilian lawyer Tais Gasparian told CPJ that the current legislation is favorable to freedom of expression and pointed out that while such cases can be brought in a criminal court legislation is balanced. CPJ and Fenaj however, have long campaigned for such cases to be heard only in civil suits.
“There is not the same kind of freedom as in the U.S. or Britain,” said Gasparian, who has represented journalists in freedom of expression cases. “If you call someone a thief and they are not a thief you lose.”
Most important, Gasparian added, is that the public interest usually trumps other concerns.
“We have laws that protect people’s honor and reputation,” she said. “But the public interest is more important. If there is a greater public interest then that takes precedence and there is no offense.”
However, because Brazilian justice is so slow, with several chances to appeal, cases can take years to resolve and only those with the most determination, not to mention the most money, are able see them through to the end.
Brazil’s Congress has been debating changes to the relevant legislation since 2011 but there appears little hope of a more tolerant stance, according to members of Article 19, an organization dedicated to defending freedom of expression.
Early drafts suggested abolishing “desacato” while at the same time doubling penalties for defamation of a public servant, Camila Marques, Article 19’s Legal Officer in Brazil, told CPJ.
Debate is ongoing but little progress is expected soon.
For Silva, until a final resolution is reached in his case he must struggle on, constrained by the cost and uncertain as to what comes next. “It affects you, it affects my family,” he said. “Even though I know I did things properly you are always worried a judge might have a relationship with someone in power and rule against me.”
“Sometimes I think, what was the point of me writing that story? Nothing happened and I am out of pocket. I showed what was wrong and he keeps his job and his big salary. I was the one that paid a price.”
This article was originally published on In Brazil, outdated defamation laws and costly court cases used to pressure critics
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