Under attack from so many quarters, press freedom in Brazil is now threatened by some judges too

A reporter's prison sentence and a controversial Supreme Court ruling fuel concerns among reporters and journalism associations
A man walks at the Planalto Palace, with the headquarters of the supreme court in the background, almost one year after the protest of January 8 with the supporters of Brazil's former President Jair Bolsonaro against President Luiz Inacio Lula da Silva, in Brasilia, Brazil December 27, 2023. REUTERS/Adriano Machado

A man walks at the Planalto Palace, with the headquarters of the Supreme Court in the background. REUTERS/Adriano Machado

9th April 2024

Schirlei Alves gave up local journalism after being sentenced to one year in prison by a judge in the southern Brazilian state of Santa Catarina. It happened in September 2023. Alves had published a news story about a businessman accused of rape and then cleared from it. Another judge filed civil and criminal lawsuits against her, and she decided that she could no longer do her job in her hometown.

In January 2024, it emerged that the same judge who sued Alves is also suing news organisations, artists and politicians for their use of a simple hashtag. Two months before, the Brazilian Supreme Court ruled that news organisations can be held legally responsible for any interviews in which sources attribute crimes to third parties. 

These cases have created an increasingly difficult environment for Brazilian news organisations. Both journalists and media companies see these court rulings as a growing threat to press freedom in a country where journalism has often been under attack. 

“These episodes come as judicial harassment escalates in Brazil. Any action that intimidates the press can be classified as such,” says Katia Brembatti, president of Abraji, the association of investigative journalists in the country. She says her organisation is working with the National Council of Justice to ensure that any cases involving the press are tagged and can give a clearer picture of the scale of the problem. 

A fine and a prison sentence

The case against Alves comes from her reporting for The Intercept Brazil on the trial of a businessman in 2020. The man was accused of raping a 23-year-old woman during a party in Santa Catarina. After the trial, he was cleared on the grounds that he had no way to know that the woman couldn’t give her consent to a sexual relationship. The woman was drunk at that time. 

During the trial, the prosecutor said that the Brazilian laws do not cover the unintentional rape of a person in a vulnerable position. As this was not included in the law, he argued, this constituted “an atypical case.”

As she summarised the trial to readers, Alves used the term “reckless rape” in the heading of her piece and suggested that the victim had been humiliated by the businessman’s defence lawyers during the hearings. After the piece was published, the hashtag #estruproculposo (reckless rape, in Portuguese) spread across social networks in a movement of solidarity. 

A few days after the piece was published, both the judge and the prosecutor filed a lawsuit against Alves for moral damages. She was sentenced to serve a year in prison – on an open regime – and to pay a fine of almost $100,000. The journalist's lawyers have appealed the conviction.

As a result of the ruling, The Intercept Brasil was forced by the courts to edit the article. Several paragraphs written by the judge and by the prosecutor were included in the piece, defending their behaviour during the trial.

“It’s exactly what you read. A judge edited a journalistic text without even listening to us,” say Leandro Demori and Paula Bianchi, editors of The Intercept Brasil at the time. “It's insane that a judge can modify a piece of journalism and control what the press can publish. Things like this only happen in a dictatorship.”

How journalists reacted

Alves’ conviction sparked a series of protests from journalists’ organisations. Brembatti, from Abraji, says the decision as “absurd on so many levels” and draws attention to the proverbial corporatism amongst Brazilian judges. Judges and prosecutors tend to protect each other, she says.

One of these cases involved reporter Rubens Valente. He was ordered to pay $60,000 to a judge of the Supreme Court for some of the passages of a book describing the arrest of a banker. Abraji, in partnership with international organisations such as Media Defence and Robert F. Kennedy Human Rights, took his case to the Inter-American Commission on Human Rights.

“From a conceptual point of view, we are fighting to ensure that international standards of insult, slander and defamation are not applied to journalistic activities. In the criminal sphere, it’s even more serious because it affects the individual. A reporter who did her job [meaning Alves], who brought this scandalous case to light, is the person who is condemned,” Brembatti says. 

The Brazilian branch of Reporters Without Borders (RSF) spoke out about this issue too. “It is unacceptable that a journalist should be sentenced to prison for doing her job. Schirlei Alves, like all journalists in Brazil, has the right to report on the activities of public servants. We repudiate this absurd decision that harms the exercise of journalism in the country,” they said in a statement echoed by other voices in the region.

Emotional exhaustion

Despite all the support she’s received, Schirlei Alves acknowledges that she’s been under an incredible emotional strain. She says she has suffered attacks and death threats, both online and in real life. “It’s been a very gruelling journey," she says.

After the sentence, she decided to stop reporting on local issues. This is a huge loss for her audience as Alves has investigated the state's public authorities for years. But she says she’s following the example of other colleagues who’ve decided to focus on more general issues such as national politics and climate change to avoid further legal troubles. 

She says the traditional corporatism of the Brazilian judiciary is even stronger in Santa Catarina, where politicians and business people partner to fight anyone who goes against them, especially the independent press.

Alves’ case shows how local journalism, whose crisis has been accelerated by online disruption and other economic factors, is also weakened by powerful actors who weaponised the judicial system to silence independent reporting and advance their own interests without any oversight.

“I even considered not working as a journalist anymore,” says Alves, who now works for Gênero e Número, an association that produces data-driven journalism on gender and race issues.

The most vulnerable news organisations 

Another alarming decision came from the Supreme Court at the end of 2023. The judges ruled that news organisations can be sued if they publish interviews with accusations “with concrete indications of falsehoods”. The decision is extremely vague and makes no reference to the criteria journalists should follow when assessing the information they include in their articles.

Nine major organisations representing the Brazilian press, including the National Federation of Journalists (FENAJ), Abraji and RSF, have spoken out about the risk of “real and undesirable self-censorship” in Brazil.

Although the environment of press freedom has flourished significantly in Brazil since the end of the military dictatorship in the mid-1980s, journalists still face many setbacks when their work goes against the interests of the judiciary. It is not uncommon for judges at all levels to censor reports or take legal action against journalists.  

In February this year, for example, a judge in the state of Mato Grosso ordered the seizure of the equipment of three journalists who had published articles criticising local authorities. Around 20 local press professionals have been the target of enquiries or lawsuits in recent years. The government denies persecution and says it is only exercising its right to "prosecute those who have lied".

Thomas Traumann, an experienced journalist and a former Minister of Social Communications under centre-left President Dilma Rousseff, says that the decision could have serious consequences for journalistic practice in the country. “The big problem is that these decisions are made arbitrarily. How do you know in advance if an accusation you are about to publish has concrete indications of falsehood?” he asks.

Traumann mentions the example of "Mensalão", one of the biggest corruption scandals in the history of Brazilian politics. The case came to light in 2004 following the explosive interview of an MP allied to the government with Folha de S. Paulo, one of the country's leading newspapers. He revealed that dozens of deputies were receiving monthly bribes to vote in favour of bills of interest to the government.

“At the time of the interview, it wasn't possible for the reporter to know whether or not that very serious accusation had concrete indications of falsehood. It was an accusation. What do I do in a situation like this, do I stop publishing?” the journalist asked.

Traumann also refers to the corporatist attitude of Brazilian judges, especially those at the lower levels. He recalls a case involving the newspaper Gazeta do Povo, which published a story in 2016 about the exorbitant salaries in the local judiciary and ended up being sued by more than 30 judges in the region.

Abraji’s Brembatti thinks the Supreme Court’s decision might exacerbate the problem of disinformation. She says that her organisation acted preventively at the Supreme Court in order to avoid a ruling that could be even harsher for news organisations.  Before the case was heard in court, Abraji contacted the reporting judge to clarify some points and avoid an even more unfavourable decision.“The terms of this decision are bad. Concrete evidence of falsehood? Evidence of insult? These terms allow for a very flexible interpretation, which is dangerous,” she says.

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