The Judiciary, especially the Federal Supreme Court, has been in the center of matters concerning press freedom, with its revocation of the Press Law and its finding unconstitutional of the requirement to hold a university-level diploma in journalism as a condition for practicing the profession.
In a decision made on April 30, the Federal Supreme Court found the Press Law (Law No. 5,250 of 1967) as not in consonance with the Constitution of 1988, which, in effect, meant its revocation. This revocation, supported by the National Association of Newspapers (ANJ) ever since its creation in 1979, still leaves one troubling point. The Brazilian press is still left vulnerable to the lack of parameters for the setting, by the Judiciary (particularly the lower courts), of conditions for exercising the right of reply demanded by citizens or legal entities that consider themselves harmed by articles that may be unfavorable or that may contain factual errors.
The main concern is the possibility of an increase in the discretionary power of judges, especially at the lowest level, in deciding on cases of reparation for moral damages. In the worst case, on March 28, the ANJ issued an official note in support of the O Estado de Minas newspaper, which, after publishing a series of reports on irregularities at the Federal University of Minas Gerais, was found guilty, at the lowest judicial level, of granting a reply that was substantially disproportional to the space given to the reports that triggered the lawsuit. The measure was reversed later by a higher court judge.
In a decision on June 17, the Federal Supreme Court, by a vote of eight to one, declared unconstitutional the requirement for a university-level diploma in journalism as a condition to practice the profession, as contemplated in Decree-Law 972 of 1969.
At the present time, the National Congress is preparing four proposals for a constitutional amendment (three in the House of Deputies and one in the Senate), reintroducing the requirement of a diploma, now to be a constitutional provision.
The situation of freedom of speech in the National Congress is a source of concern since, in addition to the afore-mentioned proposals for a constitutional amendment reintroducing the requirement of a diploma, there are now 349 bills in process (House: 40 + 277 attachments); (Senate: 16 + 16 attachments), the majority of which affect the independence of the media by restricting advertising.
During the period there has been a worsening of a trend observed in recent years in Brazil in terms of violations of press freedom: a substantial increase in cases of prior censorship applied to the media by court order. There were six (6) cases in which newspapers and their associated media (Internet, radio, and TV stations, news agencies and their subscribers) were prohibited by lower-court judges from disseminating any information about specific topics.
One of the worst of the more frequent occurrences of censorship by court order, notable because of their duration and the legal inconsistency of the decisions made, was the prohibition applied to the Estado de São Paulo group from publishing information obtained in an investigation of the Federal Police concerning alleged illegal activities of entrepreneur Fernando Sarney, son of the ex-President and now President of the Federal Senate, Senator José Sarney.
The censorship was put into effect on July 31 by a decision of Appeals Judge Dácio Vieira of the Court of Justice of the Federal District. It has been established that Dácio Vieira was a former consultant to the Senate, and a family friend of the Sarneys and of the former director of the Senate, Agaciel Maia. The basis of an appeal by the newspaper has requested that the judge be declared incompetent to be involved in the case. The request (exception of suspicion) was filed in the same court and, in spite of the evidence of conflict of interest in the case, Judge Vieira found himself competent to judge it and made critical comments to the newspaper.
The Estado de S. Paulo group appealed, and on September 15, the Court of Justice of the Federal District took an opposing position declaring Vieira lacked impartiality to decide the request for censorship and appointed in his place Appeals Judge Lecir Manoel da Luz. In spite of this, the original decision establishing censorship continues in effect. On September 30, in a new opposing decision, the same court found itself incompetent to decide the case, sending it to the federal courts of the State of Maranhão, while still maintaining the order by judge Vieira establishing censorship. It has now lasted more than three months, without doubt a black mark against Brazilian democracy..
With the support of the federal government, preparations intensified for a National Conference on Communications, which has as its first order of business an issue that includes the defense of a series of measures regulating the media and which appears to put serious limits on freedom of expression. Press representatives made a number of proposals all allowed under the constitutionwhich would be the ground rules for participation by the media in the conference. The media wanted respect for free enterprise, a guarantee of freedom of expression, and respect for the rule of law (all of them against conduct that would limit copyright protection).
The other parties involved in organizing the event, the government and groups that represented social organizations, were working under different premises. They wanted social control of the media and a revision of the regulatory framework of Brazilian communications, which has been a code word in Latin America for permitting the revocation of broadcast licenses that had been granted to free media outlets.
Because the guarantees demanded by the primary media entitiesAbert, ANJ and Anercould not be met, they withdrew from organization of the conference.
Attacks against the practice of journalism continue, particularly those made by President Luiz Inácio Lula da Sulva. For example, during his trip to Kazakhstan on June 16, 2009, he criticized what he called denunciationism of the press in regard to evidence of irregularities in the Federal Senate involving its president José Sarney. In a pronouncement, Sarney had accused the Estado de São Paulo newspaper of being dedicated to a systematic campaign against me, systematic Nazism.. According to Lula, the senator is a serious individual who has sufficient history not to be treated as an ordinary person by the press.
On May 13, 2009, the President signed a message to the National Congress about a bill on access to public information. The initiative results from a claim made by a number of entities, but the actual access of citizens and the press to public information still depends on its passage by the National Congress, and after that, on the creation of mechanisms that guarantee compliance, especially at the state and municipal levels.
Summary of incidents concerning freedom of expression in Brazil:
March 20 The judge of the 16th Civil Court of the District of Fortaleza decided to prohibit the newspaper O Povo from disseminating, by any means, a report on a case brought in federal courts concerning the numbers game (jogo do bicho) in the state of Ceará. In the court order, the newspaper was prohibited from divulging the facts and the decision of the judge of the 11th Federal Court, which declared the personal property of João Carlos Mendonça to be inalienable. Mendonça was accused by the federal prosecutors office in a criminal case based on Operation Noahs Ark that had been conducted by the federal police last year.
April 15 The 4th Isolated Civil Chamber of the State Court of Justice accepted a finding by Appeals Judge Eliana Abufaiad, establishing that the newspapers Diário do Pará, O Liberal and Amazônia must not publish photographs or images of people who are the victims of accidents and/or violent death, which would constitute an offense against human dignity and respect for the dead. The decision resulted from a suit brought by the State of Pará, the Republic of Emaús Movement (CEDECA) and the Society in Defense of Human Rights (SDDH) against the companies that publish those papers. Violation of the measure would result in a daily fine of five thousand reals.
April 15 Newspaper photographer Nelson Batista was arrested in the city of Betim in the state of Minas Gerais. The arrest order came from an agent of the Civil Police of Minas Gerais, when he was inside the building of the Institute of Legal Medicine (IML) in that city. The reporter was investigating a tip received by the newspaper O Tempo Betim that there were seven bodies in an advanced state of decomposition in that Institute. The Civil Police alleged that he had committed the crime of unlawful entry of a public building.
April 18 Members of the Landless Movement (MST) of Pará held four journalists hostage and used them as human shields against security personnel of the Castanhais Ranch in Xinguara. In addition to that, members of the MST attacked the free practice of journalism, terrorizing professionals who were covering the event for the purpose of informing society. No one was physically harmed.
May 2 Newspaper photographer Pedro Dantas, of the Estado de São Paulo, was accompanying a group from the International Olympic Committee (IOC) while conducting a final visit to Rio de Janeiro to choose the site of the 2016 Olympics. In spite of having identified himself as a press professional, the reporter/photographer was prevented from accompanying the group, pushed into a bathroom, and had his arm twisted and his face held against the tile, in addition to being threatened should the incident be published.
June 29 Judge Antonio José Madalena, of the 2nd Court of Justice of the local district ordered the newspaper Debate to pay R$ 593,203.82 damages. The amount was in reference to a case decided in 1995 after the paper revealed a series of irregularities practiced by then mayor Manoel Carlos Manezinho Pereira. Mentioned as a beneficiary of some of those irregularities, the judge has carried on relentless persecution, according to the journalist, ordering measures that go well beyond the law and that violate constitutional provisions, even involving human rights, such as his order that the accused be held in a place without a minimum of human living conditions.
July 16 Judge João Paulo Capanema de Souza, of the 24th Special Civil Court of Rio de Janeiro, ordered that columnist José Simão, of Folha, abstain from making reference to actress Juliana Paes, confusing her with the character Maya of the soap opera Caminha das Índias, on Globo TV, under a penalty of R$ 10,000, in a note disseminated to the media. On September 15, the Court of Justice of Rio de Janeiro revoked the advance payment of the amount ordered by the judge.
July 30 The newspaper A Tarde of Salvador, Bahia was prohibited by Judge Márcio Braga of the 31st Civil Court of Salvador, from publishing reports about Appeals Judge Rubem Peregrino Cunha, who was being investigated by the National Council of Justice (CNH) on suspicion of taking money for his decisions. The order was based on Article 54 of the Organic Law of National Magistrates, which calls for confidentiality in the investigation of judges. On September 23, Appeals Judge Rosita Falcão de Almeida Maia, of the Court of Justice of Bahia, suspended the measure, arguing that Article 220 of the Constitution provides that no law shall contain a provision that may constitute a barrier to the full freedom of journalistic information.
August 25 -- Reporters Paula Litaiff and Arlesson Sicsú, of the Diário do Amazonas, who were covering a convention of the group United for Coari, in the municipal high school of the Amazonian city of Coari on August 23, were attacked and threatened with death by persons connected to two former mayors of the city. One of them, Rodrigo Alves (PP) had his political rights revoked by the Electoral Court in June of this year, and the other, Adail Pinheiro, was indicted in Operation Vorax by the Federal Police last year for at least 17 crimes, including the misuse of R$ 37 million and child prostitution. In view of the aggression, insults, and threats, the journalists did not even get the protection of the Metropolitan Guard which, according to the head of the Civil House of Coari, Daniel Maciel, could do nothing against the will of the people.
September 28 Journalist Rafael Dias, of the Diário de Pernambuco, was attacked in retaliation for his report on the circumstances surrounding the death of Councilman Luiz Vidal. Dias was approached on the night of the 28th by two sons of the late councilman at the newspaper offices and beaten without conversation or chance to react.
October 5 Journalist Willington Raulino, owner of TV Integração in the city of Benedito Leite (Maranhão), was attacked by four men when returning from the city of Uruçui (PI). The journalist got a cut on his left hand and possible internal injuries. The attackers used pieces of wood and had knives. One of them pulled out a pistol but he was talked out of shooting. According to the journalist, witnesses responded to the murder attempt.
October 8 A team of reporters from the newspaper O Tempo of Belo Horizonte was detained and searched by agents of the Police of the Legislative Assembly of Minas Gerais. Journalist Ezequiel Fagundes and reporter/photographer Charles Silva Duarte were doing a report on a tip that furniture in good condition had been abandoned and was deteriorating in the Assembly parking lot. As they left the area, they were surrounded by six agents who demanded their camera´s memory card.
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