Regional Human Rights Body discuss illegitimate
restrictions to freedom of expression in Brazil
● OAS (Organization of American States) urges Brazilian government to provide more data on possible threats against freedom of expression
On Monday, March 10th, 2008, during a public hearing of the Inter-American Commission on Human Rights at the Organization of American States (OAS), in Washington, DC, USA, the Brazilian Association of Investigative Journalism (Abraji), ARTICLE 19, and the Center for Justice and International Law (Cejil) have called for the Commission to consider the laws and judicial practices that violate freedom of expression in Brazil Â–particularly the abusive use of judicial lawsuits against the media, journalists and human rights defenders.
Â“ARTICLE 19, the Center for Justice and International Law (Cejil) and the Brazilian Association of Investigative Journalism (Abraji) are deeply preoccupied with the use of judicial measures that cause illegitimate restrictions to freedom of expression and inhibit the free flow of information and open debate on public interest issues. We call on the Inter-American Commission on Human Rights that it conducts a review of all issues presented during the hearing to assess their effects on human rights defenders and social communicatorsÂ”, said Dr. AgnÃ¨s Callamard, ARTICLE 19's Executive Director.
Some of the problems include a weak legal framework; the excessive and coordinated use of civil defamation lawsuits; the high amount of lawsuits presented by public agents; the disproportional value of indemnifications; the use of provisional injunctions preventing the publication of information prior to any publication, which may amount to prior censorship; and other indirect restrictions to freedom of expression.
ARTICLE 19, the Center for Justice and International Law (Cejil) and the Brazilian Association of Investigative Journalism (Abraji) reported specific cases and presented statistics on the abusive use of lawsuits against journalists and human rights defenders in Brazil.
* From 2005 to 2007, 53 cases of civil defamation lawsuits against the media reached the Superior Court of Justice. The plaintiffs were public officials in 37.6% of these cases.
* At the SÃ£o Paulo State Court of Justice, 93 cases were presented between October and December 2007, and 47.4% of the lawsuits were filed by state agents.
The organizations also highlighted a strategy used by members of some groups in Brazil in which a series of coordinated lawsuits is filed in various parts of the country against one single journalist or media outlet, clearly intending to silence or intimidate these professionals with the excessive volume of cases.
Â“The recent wave of orchestrated use of civil defamation lawsuits poses a threat against news media in BrazilÂ”, says Mr. Fernando Rodrigues, AbrajiÂ’s vice-president. According to Mr. Rodrigues, Â“Journalists in Brazil are far from asking any type of immunity and they fully recognize the right of any citizen or institution to litigate and to pursue reparation in case of moral damage. But it is not reasonable when we have cases such as the one in which the Universal Church of the Kingdom of God filed more than 60 lawsuits in more than 30 different cities against the newspaper Â‘Folha de S.PauloÂ’ and reporter Ms. Elvira Lobato because of a single news item published last December 15th, 2007. All charges were almost identical. The clear intention was not to pursue reparation, but to make it as difficult as possible for Â‘FolhaÂ’ and its journalist to defend themselves. The law provision invoked in this case makes it mandatory for the defendants to appear in person before the judge wherever the lawsuits were filed Â–some cities are up to 4,000 km apart. The process is costly and time consuming, making it impossible for the journalist to return to work until the process is completed. To make matters worse, other institutions have already publicly announced their plans to use the same strategy when they find a news item that does not please them. This is something very different from asking for reparation. It is a clear-cut intention to silence the pressÂ”.
Representatives of the Brazilian State and the National Federation of Journalists (Fenaj) also participated in the hearing. They supported the current system of reparation for moral damages and the criminal treatment regarding defamatory statements. According to them, the abuses mentioned in the document are exceptions, not the rule. They also stated that the concerns expressed by ARTICLE 19, Cejil and Abraji do not lead to intimidation or self-censorship
The Inter-American Commission expressed preoccupation with the possibility of prior censorship through provisional injunctions, and asked the Brazilian State for more information regarding its use, as well as procedures and deadlines for review.
Commissioner Florentin Melendez pointed out that States should find a "rational balance" when there is a conflict between fundamental rights, and requested that the Brazilian State provides information on the measures taken to guarantee that such balance is reached within specific cases.
In their report, ARTICLE 19, the Center for Justice and International Law (Cejil) and the Brazilian Association of Investigative Journalism (Abraji) recommended to the Brazilian State:
* A review of the legislation on freedom of expression with the purpose of aligning it with international patterns in the area;
* The adoption of a clear and objective system for evaluating damages and deciding on appropriate indemnifications; and
* The adoption of reparation measures which do not result in illegitimate restrictions on freedom of expression.
* In response to the recent waves of lawsuits against journalists, the three organizations fully recognize the right of citizens to judicial reparations in cases where they consider they have been defamed. However, a wave of coordinated lawsuits against one individual is not acceptable. The organizations recommend that the Brazilian State considers the adoption of measures such as allowing for a single and centralized judgment when several lawsuits are filed by members of a single group regarding complaining about the same news item.
ARTICLE 19, the Center for Justice and International Law (Cejil) and the Brazilian Association of Investigative Journalism (Abraji) recommended to the Inter-American Commission that it conducts a review of all issues presented during the hearing to assess whether the current practices are in accordance with international human rights principles, and evaluates the effects that these practices may exert on human rights defenders and social communicators
Contact: Veridiana Sedeh
Abraji: + (55) (11) 3512-2127