28 Jan 13 | Brazil
Brazil’s Judiciary has approved the creation of a permanent forum about freedom of the press, with the goal of debating court rulings on the subject and preparing judges to making more well-founded decisions.
The Judiciary’s National Forum on Freedom of the Press was created last November through a resolution issued by the National Justice Council (CNJ), a body responsible for supervising Justice’s activities in Brazil and ensuring its independence.
Although the resolution that creates the Forum on Freedom of the Press goes as far back as November, the group has not yet been fully formed. It is hoped it will be ready to convene in early February.
Brazil’s ranking for press freedom went down from 58 last year to 99th in the world this year, according to Reporters Without Borders.
The Forum will follow all cases related to freedom of the press, analysing judges’ actions and aiding with information that could affect court rulings in all jurisdictions. In addition to monitoring cases, they will investigate how similar cases are dealt with in other countries. The plan also involves working with law schools across the country to build a deeper understanding of press freedom.
The idea of creating the Forum came through former President of CNJ and former Chief Justice of the Supreme Court Carlos Ayres Britto, who retired last December.
The Forum will be formed of nine members, including CNJ counselors, state judges and representatives from different bodies such as the Order of Attorneys of Brazil, the National Newspapers Association, the Brazilian Radio and Television Broadcasters Association and the National Press Association.
Although CNJ has among its duties conducting disciplinary proceedings and applying sanctions against judges and members of the Judiciary, the Forum will not have the power to overturn court rulings concerning the freedom of the press.
“We want to stimulate the discussion about the freedom of the press, by bringing some visions from outside the Judiciary and increasing Justice’s flexibility on this subject”, says the coordinator of the Forum, federal prosecutor Wellington Cabral Saraiva.
He says the Forum was created because CNJ was concerned with some controversial court rulings, which were considered to be a result of a lack of knowledge from judges about how freedom of the press should be regarded in Brazil.
Saraiva exemplifies this by citing court rulings that set enormously expensive reparations against journalists or media companies for defamation or slander, or that obstruct the publishing of specific news — or even books, including biographies.
One high-profile legal case this concerns O Estado de S.Paulo, one of Brazil’s biggest daily newspapers. A court ruling from 2009 prevents Estado of publishing news about a police operation that could incriminate a media mogul from the northeastern state of Maranhão. The newspaper sees this as a clear-cut case of censorship, and is still waiting for a final verdict.
“We do not see this as a general trend in Justice. Some controversial decisions can the taken, but this is normal within the Judiciary. Some legal issues are complex, being open to different rulings”, Saraiva says.
The Forum’s coordinator sees a specific “political culture” as the main threat to press freedom in Brazil, through which some politicians and public agents don’t acknowledge the importance of a free press.
Because of that, Saraiva says, there are so many cases of violence and even murder against journalists and bloggers in Brazil, mainly in areas far from the country’s big cities.
He thinks this “political culture” also reflects on judges’ rulings: “When we consolidate a true democratic culture among politicians and magistrates, we’ll also have a reduction of court rulings that are excessively restrictive.”
18 Jan 13 | Brazil
One of Brazil’s largest daily newspapers claims that it has now faced censorship for 1,200 days, due to a court ruling prohibiting it from publishing news about a police operation that could incriminate a media tycoon — who is also the son of a former President of the country.
In 2009, daily newspaper O Estado de. S.Paulo had access to information and tape recordings related to a Federal Police investigation the previous year in the northeastern state of Maranhão, one of Brazil’s poorest areas. The newspaper alleged that business people from the region were involved in various crimes, including money laundering, tax evasion, and corruption. One of the individuals investigated was Fernando Sarney, who was head of a media conglomerate at the time, as well as the son of former President José Sarney — one of Brazil’s most influential politicians, who currently serves as president of Brazil’s Senate.
Brazilian daily newspaper O Estado de. S.Paulo claims that it has been censored
Fernando Sarney was indicted by federal police on 15 July 2009, and accused of favouring private businesses in contracts firmed with state companies. He was accused of being behind the scheme, but he denies all allegations. On 31 July 2009, a Federal District judge forbid Estado from publishing any more news about the police operation, because of a lawsuit filed by Sarney against the newspaper. His lawyers claimed that Estado committed a crime and damaged Sarney’s family reputation by publishing their taped conversations, even if they were made with the consent of the Judiciary.
The ruling drew harsh criticism from other newspapers and media-related organisations including Associação Brasileira de Imprensa (Brazilian Press Association), with most of them claiming that the ruling violated Brazil’s constitution.
At the same time, Sarney issued a statement where he claimed that publishing news about an ongoing police investigation was an “injustice” and “a violent act” against him and his family. He also denied that the press was censored, and claimed to be defending his rights as guaranteed by the constitution.
In December 2009, Sarney said he would drop the lawsuit. However, the newspaper decided not to accept desistance, and requested that Sarney also relinquished his right to represent the complaint — meaning that the lawsuit would go on even without him as the suing party. Estado also expressed its preference to have the case judged by the Supreme Court, in order to generate a legal precedent that would apply to all similar cases in the future. However, the case was sent back to the Federal District state court, which has yet to set a date for the trial. Since a final verdict has yet to be reached in the suit, Estado is barred to this day from publishing any news about the police investigation in Maranhão, or its consequences.
Roberto Gazzi, the newspaper’s director of Editorial Development says that this is a clear-cut case of censorship.
The information published by the newspaper at the time — and that have been prevented to be published ever since — were not of a private sort. These were facts involving public money and public agents, inside the limits of which we consider to be the right of the free press to publish, standing for society’s interest.
Estado had its 138th anniversary on 4 January last year, and has an average daily circulation of 260,000.
Sarney could not be reached for comment, and his lawyers had no comment on the case.
Rafael Spuldar is a journalist based in São Paulo
09 Jan 13 | Americas, Brazil
Tech giant Google is in the middle of a censorship debate in Brazil after its top executive in the country was temporarily detained during the latest mayoral election.
Fabio Coelho was detained in September by order of a judge from the state of Mato Grosso do Sul. He demanded the removal of YouTube videos considered offensive against Alcides Bernal, the mayoral candidate of state capital Campo Grande. Since the video wasn’t promptly deleted, Coelho was held responsible.
He was questioned by federal police and released shortly after.
Google Brazil executive Fabio Coelho. Image from Twitter
Brazilian law is extremely rigid about offensive material aimed at political candidates. But many view some of the judges’ attitudes in these cases as excessive and often times myopic.
In a statement issued in September, Coelho said the episode had “intimidating effects” on freedom of expression. He claimed the videos were “legitimate manifestations of free speech” and should be kept available.
“There are gaps in Brazil’s electoral legislation that make this kind of situation possible”, said Google Brazil’s Public Policy Senior Counsel Marcel Leonardi about Coelho’s arrest. He added:
We hope this episode puts a light on the need to adjust Brazil’s law, so that legitimate political outcries from internet users can be differentiated from, say, unlawful propaganda. The dynamics of the internet need to be understood.
In November, lobbying by telecom companies in the Brazilian Congress’s lower house killed a draft bill known as the “internet bill of rights”, a civil rights framework to guarantee basic rights for internet users, content creators and online intermediaries.
Google says Brazil is one of the countries that has the most cases of site removal requests made by government agencies.
28 Nov 12 | Americas, Brazil, Digital Freedom
The Brazilian Congress’ lower house has killed a draft bill that would have pioneered the world’s first “Internet Bill of Rights.” Feted by free-speech activists and negotiated over several years, the bill used a civil rights framework to guarantee basic rights for internet users, content creators and online intermediaries — establishing that providers are not responsible for user content.
Marco Civil da Internet | Cultura Digital | CC: BY-NC-SA
The bill, known as Marco Civil da Internet, also guaranteed net neutrality — a move that angered the telecommunications industry as it would prevent internet service providers (ISPs) from implementing a two-tier flow of internet traffic. ISPs worldwide are keen to charge differentiated rates for delivering digital content, this would enable the industry to charge either content providers or consumers more for delivering some kinds of internet traffic, such as movies.
A vote on the draft bill scheduled to take place in the Chamber of Deputies on 20 November was postponed. It was the fifth time in the last two months that a vote on Marco Civil was pushed back after legislators failed to agree on the text. House Speaker Marco Maia has now removed Marco Civil from the list of draft bills on Brazilian lawmakers’ agenda — meaning it will not be bought back to the floor.
The main reason for Marco Civil’s failure was a lack of consensus on the issue of net neutrality. Deputy Alessandro Molon, who sponsored the bill, says Brazil’s main telecommunication companies lobbied hard against it, arguing it was contrary to the principles of the free market.
Other elements of the bill also created controversy — copyright holders were angered by the legal protections offered to internet intermediaries who host or transmit content shared or created by third parties (companies like Google and Facebook). The draft bill stated that such third party content should only be deleted after a court order. Detractors say this process should be faster and simpler, and providers should be able to remove content after being merely notified by offended parties — an argument seen by analysts and activists as a risk to free speech.
The companies’ case apparently influenced key members of Congress and made it impossible to reach an agreement on Marco Civil’s final text. Although industry lobbies were successful in watering down key user protections, their legislative surrogates wanted to impose even greater changes on the text.
After Marco Civil’s failure on Tuesday, Molon said it was up to society to put pressure on deputies to push the draft bill to the floor. He was also critical of big companies that had “their interests frustrated” by Marco Civil.
Molon was supported by the countries President Dilma Rousseff and Vice-President Michel Temer — president of PMDB Party, the main ally to Rousseff’s Workers’ Party in Congress. Despite their respective parties having a substantial legislative majority Rousseff’s and Temer’s support of Marco Civil was rendered ineffectual after lawmakers — mainly from PMDB — took issue with key elements.
The failure of Marco Civil was denounced by activists all around the internet. The Pirate Party founder Rick Falkvinge called the episode a “political fiasco” in which Brazil wasted a chance to gain world-wide influence on free speech issues.
“[The Marco Civil obstruction] follows a ridiculous watering-down and dumbing-down of the bill, at the request of obsolete industry lobbies. Having been permanently shelved, this means that Brazil has practically killed its chance of leapfrogging other nations’ economies”, said Falkvinge on his website.
“Marco Civil could be an advance not only for Brazil, but for all countries, on how to discuss law enforcement on the online world — and its consequences”, said André Pase, Digital Communication professor at PUC University in Porto Alegre.
“A legal framework could go beyond regular laws that get easily obsolete in a context of innovation, where fresh, free online services are born all the time.”
Rafael Spuldar is a journalist based in São Paulo
