Freedom of expression is guaranteed by the Federal Constitution, but there have been attempts to block or restrict this right which belongs not just to communications professionals and companies, but also to the Brazilian people.
Brazilian press organizations are concerned about a bill called the “Gag Law,” that was introduced in the Chamber of Deputies. The bill would prohibit judges, prosecutors, court employees, police officials and other public officials who are in charge of a police or administrative investigation, including trials, to make comments to the media about any case including those that are not covered by confidentiality of criminal investigations.
Brazilian law is clear about cases in which investigations must be conducted in secret, either in the interest of the public or of the party being investigated. For this reason, in the years since the approval of the 1988 constitution, those who are uncomfortable with full press freedom only stress exceptional cases, which confirm the rule.
President Fernando Henrique Cardoso introduced the “Gag Law” bill and the Chamber of Deputies approved it in 1999. Bill No. 65 then went to the Senate where it was added to Senate bill PLS No. 536. It covers the same area, that is, restricting access to information, defining abuse of authority as “improperly allowing facts or news known because of one’s position that violate a person’s confidentiality during a criminal investigation, privacy, private life, image or good name to reach third parties or the media.”
Following are the most important developments;
On November 19, Dilmércio Daleffe of Gazeta do Povo of Curitiba and Richard Rogers Gonçalves of TV Carajás of Campo Mourão, both from Paraná state, were attacked by members of the Landless Workers Movement (MST) on a farm in Luiziânia, in the west central part of the state. The journalist of Gazeta do Povo was injured in the knee, neck and chest. The attackers also destroyed his camera and stole his digital photo cards. The demonstrators also obstructed the work of journalists Sid Sauer Walter of Boca Santa, Hermes Hildebrand of Diario Tribuna do Interior of Campo Mourão, and Marcos de Souza of TV Carajás.
On December 5, city civil guards attacked and handcuffed Márcio Fernandes, a photographer for the daily O Estado de S. Paulo, when he was photographing the detention of a vendor in Valle de Anhangabaú in the center of São Paulo. The photographer was put in a vehicle of the Metropolitan Civil Guard and taken to the 3rd Federal District in Santa Ifigênia. The civil guards, Daniele Sabino de Oliveira and Henrique Aparecido Gonçalo, alleged that Fernandes had not identified himself, had failed to respect “authority,” attacked them and injured one of them. They also said they had to handcuff the photographer because he was overwrought and resisted arrest. Fernandes said the civil guards were angry when they saw that he was making a record of the vendor’s arrest.
On January 29, 2004, Romar Costa, a photographer from Jornal do Brasil, was chased and attacked by actor Marcelo Novaes in Rio de Janeiro. The actor lost control when he saw the photographer filming scenes on the beach. He chased the photographer and when he caught him he attacked him physically and damaged his equipment. The state public prosecutor’s office ordered Police District 16 to begin an investigation of the attack.
On September 1, the press was authorized to report an accusation of sexual harassment against Judge Renato Mehanna Khamis. The secrecy order was lifted by Judge Carlos Roberto Petroni of the 4th Civil Branch of Pinheiros, São Paulo (SP) who said the news was of “public interest.” The case had been kept secret for more than a year.
The prior restraint was directed at Editora Abril S/A, UOL Universo Online Ltda., Radio y Televisión Bandeirantes Ltda., Valor Econômico S/A and AOL Brasil Ltda., all of which had been prohibited from reporting on the administrative disciplinary process in the Regional Labor Court of São Paulo investigating a charge of alleged sexual harassment of three workers in his office by Judge Renato Mehanna Khamis.
The judge alleged that the complaints were totally unfounded and that reporting on the charge would adversely affect his good name and the credibility of the judiciary. He defended the ban on reporting about the matter. The judge obtained prior restraint, which is actually censorship, which is prohibited by the Brazilian Federal Constitution in paragraphs IV, IX and XIV of Article 5 and Article 220, which establish the unrestricted right to freedom of expression and repudiate any form of censorship.
Judge Carlos Roberto Petroni agreed in his ruling, saying that the ban on reporting represents censorship, a restriction that is prohibited by the constitution. “On the other hand,” he continued, “in cases of violation of privacy, private life, the good name and image of individuals, the recourse provided for in the constitution is punitive or compensatory damages as redress for what is published in the press, and the imposition of restrictions or censorship of any type is not allowed according to any interpretation under the law.”
The ruling that ended the order of secrecy in the case of Judge Renato Mehanna Khamis is a victory for press freedom in Brazil.
On September 11, 2003, José Dirceu, presidential chief of staff, signed Resolution 1091, which limits reporting of official news by restricting use of the database of regulatory acts of the office of the chief of staff’s assistant for judicial affairs. The resolution states that publication anywhere of the content of the presidential palace’s database “requires the authorization of the assistant for judicial affairs.”
On December 4, the Senate Constitution and Justice Committee approved the bill called the “Gag Law” which prohibits members of the public prosecutor’s office, judges and police officials from providing information about pending cases. This mobilized Brazilian political groups and the media. The Workers Party was able to block a vote on the bill in the Senate the following day, December 5. At the request of one side, some of the Senators left the floor at the time the vote was called.
The Gag Law requires a two-year prison sentence for national prosecutors, officials, judges and other judicial officials who reveal information they learn because of their jobs.
On December 30, 2003, the Federal Medical Council (CFM) changed its requirement that doctors interviewed by journalists read the article before it is published. Under the new regulation, a doctor who does not agree with quotes attributed to him must send a letter with his corrections to the media outlet that published the interview and the regional medical council he belongs to.
The Federal Medical Council decided to modify and publish Resolution No. 1701 with changes to Articles 3, 7 and 15 in September 2003. Known as the “resolution on medical publicity,” it establishes criteria for publications about medicine and medical affairs. According to the CFM, the goal is to prevent sensationalism and self-promotion. In November, before making the changes, the CFM met with representatives of journalists’ groups to discuss the new text.
At that time, the journalists requested a meeting with the board of directors of the CFM to discuss Article 7 of the resolution, which encroaches on the free practice of journalism and threatens the constitutional guarantee of press freedom.
On December 19, Diego Leonardo Di Marco Piñeiro, a judge of São Lourenço do Sul (RS), ordered the mayor Dari Pagel to pay court costs and the lawyers’ fees for the daily Tribuna Popular. Two years earlier, the mayor, who alleged that a headline had damaged his good name, obtained a court order to search the newspaper and seize one edition. At that time, the newspaper’s lawyer Cláudio Rogério Freitas da Silva responded saying the headline represented the news story without any insulting content and that, contrary to what the mayor said, the newspaper had been the target of all kinds of reprisals. The defense also noted that other newspapers had published similar news and their editions had not been seized, which demonstrated unfair persecution of Tribuna Popular.
In his ruling, the judge said the newspaper had not abused the right to inform, adding: “there was no error, nothing inopportune and no false statement in the headline of the daily Tribuna Popular.” He also said: “If the plaintiff did not want to see his name in local, regional or state newspapers, he should not have sought public office, especially not that of mayor.”
On July 21, 2000, Mayor Dari Pagel, who was unhappy that Tribuna Popular had published a headline saying he had been accused during the trial with dishonest conduct in office, filed an anonymous request for relief, demanding the seizure of that edition of the newspaper. Acting Judge Ana Paula Braga Alencastro granted the order.