3. Domestic Legislation and Brazilian Legal System
Prior to conducting an analysis of the Federal Constitution and the significance of certain articles for the purposes of this study, it is essential to underscore the impact of Human Rights in the formulation of the 1988, Federal Constitution of Brazil.140 In the pursuit of a more compassionate and rights-oriented constitution, Brazil sought to establish a post dictatorship era wherein fundamental rights would be enshrined in the initial chapter of the Constitution. This endeavour aimed to rectify the violations of basic principles that were prevalent during the military dictatorship,141 thereby demonstrating Brazil's genuine commitment to upholding and honouring human rights.
During the period of the Military Regime that commenced with the coup d'état in 1964,142 Brazil exhibited a prolonged period of apathy and negligence towards the Universal Declaration of Human Rights. The country even demonstrated resistance towards international agreements pertaining to this matter, thereby instigating a violent and inhumane regime that persisted until 1985. Prior to the occurrence of the military coup, Brazil exhibited a partial implementation of human rights, which was championed by a significant portion of the intellectual community. Following the occurrences of 1964, the previously limited rights underwent a transformation, resulting in their complete negation by the prevailing bourgeoisie and even by the intellectuals who had previously advocated for them.143
The Military Government's rationale for abstaining from ratifying international treaties and documents pertaining to human rights subsequent to the Universal Declaration of Human Rights (UDHR) was grounded in the contention that such agreements infringed upon the sovereign rights of the Brazilian State, rendering their incorporation into the legal framework inconceivable. Nevertheless, conducting a concise historical analysis allows us to assert that the non-ratification of the documents can be attributed to the State's discordance with principles of human rights. Specifically, it was widely acknowledged that the State engaged in acts of torture, arbitrary detentions, and political persecution, particularly targeting communist factions, alongside various other instances of abuse during that era. The issue at hand pertains to the potential rationale for dissenting against internationally established regulations that safeguard the inalienable human rights of all individuals. In the event that such documents were to be ratified, it would effectively imply that the State, specifically the Military Government, would be acknowledging that their actions contravened the fundamental principles outlined in the Declaration of Human Rights. It is evident that this outcome was not the intended vision of the rulers during the military era.144
Hence, the objective of this chapter is to examine the Federative Constitution of the Republic of Brazil, alongside the Legal framework of Brazil, the organisations established in Brazil to safeguard journalists, and lastly, the legislation pertaining to the freedom of the press.
3.1 What was censorship in Brazil during the Military Dictatorship?
The historical account of the Dictatorship in Brazil reveals that it was not officially acknowledged as such, but rather portrayed by the ruling authorities as a temporary military regime.145 This regime was purportedly established with the aim of ensuring national security and promoting economic progress, as the country was perceived to be under threat from anti-democratic populist or communist factions (as per the authorities at the period).146 The 1964 coup was justified under the guise of democracy and received validation from the United States. The military rule, which first presented itself as a temporary government and pledged to hold democratic elections in 1965, nonetheless endured for nearly two decades, as widely acknowledged.147
The Brazilian military governments exhibited a distinct characteristic of grounding their actions in laws, regardless of their discretionary nature, in order to ensure the restoration of the democratic process and simultaneously establish institutionalisation of the regime.148 This approach allowed these governments to maintain an appearance of legitimacy. Censorship, like other forms of regulation, was also grounded in legal frameworks.149 One prominent and highly influential regulation during the democratic era was Decree n. 20.493 of 1946,150 which governed the censorship of content pertaining to morality and societal norms. This decree, which remained in effect until the adoption of the 1988 Constitution, implemented a system of prior censorship for various forms of public entertainment, including cinema, theatre, advertising, radio, television, and other public representations. This historical context highlights the existence of legal censorship during the democratic period from 1946 to 1964.151
The regulation of press censorship was not precisely defined, so leaving it mostly at the discretion of the censors.152 The implementation of censorship measures took various forms, as per directives issued by the Federal Police through written communications and telegrams sent to newspaper editorial offices. These communications outlined specific topics that were to be avoided in news coverage. Additionally, agreements were made with media owners to restrict the dissemination of unfavourable news about the government during the dictatorship.153 Furthermore, individual and institutional self-censorship played a significant role in inhibiting the publication of such news, driven by apprehensions of potential reprisals.154
In accordance with prevailing norms, publications were traditionally subjected to pre-censorship, with some media outlets even employing an in-house censor.155 This practise was seen at newspaper “O Estado de S. Paulo” and “Jornal da Tarde”.156 Instead of disseminating prohibited content, the publication included portions from cake recipes (Due to the imposition of government censorship regulations, journalists were compelled to include recipes in the newspaper's edition as a means to meet publication deadlines and circumvent the prohibition on specific reporting), so providing readers with tangible evidence of the presence of censorship.157
Popular music was an area that saw significant targeting by censors due to its extensive reach among the general population. The persecution of the singer Chico Buarque,158 who was deemed a political adversary, is well-documented. This was particularly evident after his publication of the samba song "Calice".159 Initially, the song went unnoticed by the censorship authorities, who approved its distribution, but it was subsequently outlawed.160 Also, radio and television were subject to significant scrutiny by censorship authorities, who went as far as completely prohibiting some telenovelas. The circumstances were of such sensitivity that the writers and broadcasters themselves practised self-censorship, frequently assuming an institutionalised nature. Numerous literary works and theatrical productions were subjected to censorship as well.161
It is noteworthy to emphasise that throughout the period of censorship, there were several instances of enigmatic disappearances and fatalities involving journalists and other individuals as a result of police persecution.162 One such example is journalist Herzog,163 who gained international recognition for his courageous advocacy in support of democracy. Mr. Herzog was apprehended and subsequently subjected to interrogation by military operatives, ultimately resulting in his death inside the confines of his detention facility. The authorities at the time concealed the murder, providing the press with information suggesting that the cause of death was suicide. The demise of Herzog served as the catalyst for the first widespread protest against the authoritarian regime.164
The Amnesty Law,165 which was enacted under the military administration, resulted in the nullification of all offences committed by both military personnel and revolutionaries, so partially supporting the process of democratic transition in Brazil.166 Amnesty refers to the act of pardoning one or several offenders, resulting in the expungement of their criminal records. In the context of Brazil, the act of granting amnesty is carried out by the National Congress subsequent to the ratification of a measure in both chambers. This particular focus of dedication pertains mostly to offences of a political nature. Censorship was removed alone with the enactment of the Federal Constitution of 1988, which included basic rights as previously discussed in this research.167
3.2 Brazilian Legal System
In order to comprehend the Brazilian legal system, it is important to acquire knowledge about its historical foundations. It is essential to highlight that the majority of countries worldwide own two prominent legal systems, namely the Roman-Germanic and the Common Law systems. Brazil's legal system is organised based on Roman-Germanic principles, which provide a framework that upholds the rule of law, hierarchical rules, and a well-defined judicial organisation. Therefore, upon careful examination of this structure, it can be said that the apex of the legal framework is occupied by the Federal Constitution of 1988.168
According to legal systems developed from the Roman-Germanic tradition, the Constitution formulated by a particular State has the highest authority. It encompasses a collection of fundamental laws and concise regulations that establish the framework of the State and establish its legal, social, and political structure. The process of ascertaining the collective and individual rights and assurances. In accordance with this criteria, the Constitution establishes the principles by which the State is structured, and it is distinguished by its inflexibility, denoting the primacy of its regulations over other forms of law. It is noteworthy to add that the 1988 Federal Constitution is characterised by its formal and inflexible nature, as it establishes a solemn procedure for its modification, which necessitates a Constitutional Amendment. This amendment must be adopted in two rounds by a majority of three-fifths of the members in both chambers of the National Congress.169
The Constitution employs a federative framework in the realm of delineating State powers. This framework organises the republic in a political and administrative manner by distributing power among the Federal Union, states, Federal District, and Municipalities.170 Each of these entities operates autonomously and possesses competences that are explicitly defined within the constitutional text. In certain instances, there are concurrent competences, meaning that certain matters are subject to regulation by multiple spheres of authority. The significance of the republic's partition into a federative structure has great importance, since the Brazilian federation is inherently indissoluble, even with constitutional amendments (referred to as immutable provisions).171
In addition to the aforementioned political-administrative organisation, the Federal Constitution incorporates a tripartite model of power division, wherein the duties of the State are allocated among the executive, legislative, and judicial branches, each with distinct responsibilities.172 The executive, legislative, and judiciary branches are distinct and autonomous at the levels of the Union, states, and Federal District. However, municipalities possess only local executive and legislative powers, with judicial matters falling under the jurisdiction of either the state or Union, depending on the nature of the case.173
The legislative branch has the responsibility of formulating legislation, according to the provisions outlined in the constitutions of the nation and individual states, as well as the organic laws governing towns.174 It is crucial to note that some topics presented for consideration by the legislative branch are only proposed by the executive branch, such as budgetary legislation, which serve as significant tools for public administration within the legal framework of Brazil. While some issues fall within the exclusive jurisdiction of the executive branch, there is no impediment to the legislature modifying the substance of the proposals submitted to it. This is because the democratic system necessitates the involvement of parliament in the enactment of legislation in Brazil.175
The judiciary fulfils the crucial function of adjudicating disputes among individuals, corporations, and governmental entities, with the objective of applying constitutional principles and legal statutes to specific instances, therefore resolving the conflicts brought before it.176 Furthermore, certain judicial bodies possess the jurisdiction to adjudicate abstract matters pertaining to constitutionality.177 For instance, the Federal Supreme Court is empowered to determine the constitutionality of both federal and state laws. Similarly, the Courts of Justice in each state have the authority to adjudicate cases involving municipal laws. The judgements rendered by the Supreme Federal Court in direct actions of unconstitutionality and declarations of constitutionality178 possess a binding nature, exerting an erga omnes179 impact, which encompasses all individuals, including public authorities.180
Hence, it is indeed accurate to assert that Brazil adheres to the Civil Law framework; but, the Brazilian legal system has shown receptiveness towards many attributes conventionally associated with common law. In recent years, certain modifications in procedural legislation, such as the amendment to the Civil Procedure Code in 2015, as well as constitutional amendments, have enhanced the efficacy of judicial rulings made by higher courts. This includes decisions made within the framework of concentrated control of constitutionality, such as the aforementioned direct action of unconstitutionality and direct action of constitutionality.181
3.3 Constitution of the Federative Republic of Brazil 1988
The Federal Constitution of Brazil was ratified in 1988 after extensive deliberation and in the aftermath of a 21-year period characterised by military rule.182 The Constituent Assembly was duly authorised and subsequently elected, including members who were selected by the Brazilian populace. This procedure marked a significant milestone in the country's history, as it solidified the most democratic constituent process to date.183
The 1988 Constitution introduced a series of basic rights protections to Brazil, which were previously absent in the nation. The observation of this phenomenon becomes apparent in the first chapters, when a focus on basic rights and guarantees takes precedence over inquiries into the organisation of the State. This shift in emphasis highlights the paramount importance put on the dignity and well-being of the individual.184 Hence, it can be asserted that the 1988 Constitution provides legal assurance for a Democratic State of Law, which is grounded on principles of citizenship, human dignity, and pluralism. Its fundamental tenet is the pursuit of social equality and the establishment of a society that is both free and equitable.185
With the subsequent ratification of international treaties, Brazil's commitment to Human Rights adaptation remained intact. This can be attributed to the significant influence exerted by the Declaration of Human Rights on the formulation of the 1988 Constitution.186 Consequently, the civil and political rights proclaimed by the United Nations found their way into the Brazilian Constitution. The advancement in international legislation can be interpreted as the categorization of international rights within the realm of constitutionally protected rights, thereby elevating international human rights treaties to the level of a constitutional norm, as stipulated in Article 5, Paragraphs 2 and 3 of the 1988 Constitution.187
Brazil's post-democratization era witnessed a significant increase in normative production concerning human rights compared to its historical context. This progress can be attributed to the advancements made with the enactment of the 1988 Constitution.188 Additionally, the Brazilian State has ratified crucial treaties and conventions, including the American Convention (which holds great significance for Brazil), and the Covenant on Civil and Political Rights, as discussed in the previous chapter.189 The significance and pertinence of some documents in the context of Brazil are of utmost importance, considering the nation's tumultuous past and the persistent spectres that have haunted its democratic processes.190
It is crucial to underscore the significance of the Principle of Separation of Powers, which was initially introduced in the Constitution of 1824. This principle delineated the legislative, executive, judiciary, and moderating powers, with the latter being vested in the Emperor who possessed the authority to directly intervene in any of the aforementioned powers as deemed necessary. The adoption of Montesquieu's tripartite formulation191 was recognised with the construction of the subsequent Constitutions. The proposed system would include a division of powers, so establishing their autonomy from one another, fostering a cooperative relationship, and devoid of any hierarchical structure.192
In order to uphold the philosophical principles of Montesquieu and ensure a balanced distribution of powers, it is imperative to deepen the functions of each branch and establish clear boundaries of competence. This approach emphasises the protection of the Democratic State of Law and consequently treats all powers with equal importance and scope.193
Despite the original political purpose of a parliamentary system during the construction of the 1988 constitution, the presidential regime has significantly shaped the current political landscape in Brazil.194 The powers of the Legislature have experienced an expansion in their attributions, indicating the constituent's clear intention to endorse parliamentarism. This can be observed in Article 49, item V, of the Federal Constitution, which allows the National Congress to suspend normative acts of the Executive Power. Additionally, Article 55 guarantees the inviolability of Deputies and Senators in expressing their opinions, words, and votes.195
The Judiciary, albeit not to the same degree as the Legislative branch, derives significant advantages from its organisational framework as outlined in article 112 of the Constitution,196 enabling a comprehensive understanding of its composition. It is important to note that this presupposes the existence of a federative system, particularly in relation to the jurisdiction of federal justice, the State Courts, and the judges of the Federal District and territories. Furthermore, the primary role of the judiciary is to engage in the process of interpreting laws and resolving legal disputes in conformity with constitutional principles and statutes enacted by the legislative branch.197
Ultimately, the responsibility for governing the State lies with the Executive branch, which is required to adhere to the prevailing standards within the State. The primary objective of the Executive is to effectively manage public interests and control the populace. The Executive branch has authority at the federal level and is accountable for the governance of the President of the Republic, who serves as the chief of state. As previously said, the individual in question assumes the role of leading the State, assuming responsibility for both foreign and domestic affairs pertaining to political and economic ties. Furthermore, it is noteworthy that the President engages in direct interaction with the Legislature, therefore possessing the authority to either approve or veto legislation that has been approved by the National Congress.198
Continuing along this logical trajectory, one may inquire about the reception of freedom of expression inside the Brazilian Legal Framework and the extent to which it is safeguarded. The Brazilian Constitution recognises freedom of expression as a fundamental right, ensuring individuals the liberty to freely express their opinions, beliefs, and thoughts as can be find in the article 5, items IV and III. This right also encompasses the reception of information and ideas through various mediums, such as art, articles, books, and verbal communication. Furthermore, the enjoyment of freedom of expression may be facilitated by many modes of communication, encompassing all available forms of communication, irrespective of licencing or restriction.199
3.3.1 The Constitutional Protection of Freedom of Expression
The concept of freedom of expression is considered a basic right, since it is included in the Federal Constitution of 1988 under the section on basic Rights and Guarantees. This constitutional recognition is based on the significant importance of freedom of expression in fostering democracy and political plurality. In this manner, it is feasible to identify a reference to the concept of freedom of expression under Article 5, item IV in the following manner:200
“Article 5, Item Iv: IV – the expression of thought is free, and anonymity is forbidden”.
Hence, it is crucial to emphasise that Article 5 and its constituent provisions are unequivocal stipulations, meaning that they are immutable and cannot be modified to diminish the rights that are safeguarded within.201
As previously stated, the aforementioned right is not only protected by domestic law in Brazil but also by international agreements to which the State is a party. Most notably, it is enshrined in the United Nations legal framework, as shown by the Universal Declaration of Human Rights.202 The concept of freedom of expression, as embraced by numerous international instruments, serves as a foundation for the existence of Democracy. By rejecting any possibility of censorship, this principle counters the historical instances of suppression, such as the nearly 21-year military dictatorship in Brazil and the authoritarian governance under the Bolsonaro administration.
The Bolsonaro administration was characterised by stringent limitations imposed on journalists' freedom of expression. This phenomenon may be attributed to the actions of the previous President, who undermined the credibility of the press, media, and journalists as a whole. He resorted to verbal attacks on journalists who attempted to inquire about matters pertaining to his time in office, and even encouraged his followers to engage in similar behaviour. Throughout his four-year tenure as the leader of the Executive Branch, there was a notable decline in the credibility of the press, accompanied by a disconcerting increase in the frequency of attacks on the mainstream media, journalists, and the press as a whole, when compared to previous years.203
Furthermore, as stated in Article 5, the aforementioned document ensures the access to information and freedom of expression via two distinct provisions as shown below:
“IX – the expression of intellectual, artistic, scientific, and communications activities is free, independently of censorship or license; and
XIV – access to information is ensured to everyone and the confidentiality of the source shall be safeguarded, whenever necessary to the professional activity”.
The concept of freedom of expression, as enshrined in the Federal Constitution of 1988, encompasses a broad range of rights, such as freedom of the press, freedom of information, and freedom of opinion and expression. The significance of freedom of expression under the Constitution is such that it extends beyond mere interpretations. It encompasses several aspects of the Constitution, including the right to access journalistic information, which is legally grounded in the Constitution.204 Article 220 of the Constitution is comprised of two subsequent items, namely paragraph 1205 and paragraph 2,206 which pertain to the subject matter of censorship. The aforementioned clauses of the Constitution have significant and elevated relevance in the context of this study endeavour.
In this particular context, it is feasible to evaluate the comprehension of the Federal Supreme Court, which has acquired its knowledge from the Jurisprudence of the Inter-American Court of Human Rights in the cases in which it has rendered judgements. This is due to the fact that the Supreme Court has disseminated multiple bulletins pertaining to the jurisprudence of both the Federal Supreme Court and the Inter-American Court, wherein it compares the decisions of these two entities.207208 As previously said, the collision of basic rights requires a thorough analysis to prevent the encroachment of one right onto another. Furthermore, it is noteworthy that the Supreme Court has not only acknowledged and implemented the restrictions outlined in Article 5, Section X, of the Federal Constitution, but has also recognised and enforced the limitations pertaining to freedom of expression as stipulated in Article 13 and its corresponding paragraphs of the American Convention. This is particularly evident in cases involving hate speech and instances of prior censorship.209
In relation to pre-censorship, the Federal Supreme Court rendered a very relevant judgement in its ruling on a constitutional challenge in 2016.210 The procedure focuses on the examination of the constitutional validity of certain provisions within the Brazilian Civil Code pertaining to the publication and transmission of personal writings, images, and similar materials via biographical works. The Federal Supreme Court has ruled that the Federal Constitution explicitly bans censorship, so affirming the fundamental right to freedom of expression. This ruling establishes that neither the State nor private individuals have the authority to impose restrictions on this right.211
The Federal Supreme Court conducted an analysis of article 13 of the American Convention on Human Rights. Unlike other international instruments, the American Convention specifically addresses censorship and prohibits any kind of prior control on the exercise of the right to freedom of thought and expression. The only anticipated exemption is to the need of obtaining prior authorization for public exhibitions, with the aim of safeguarding the well-being of minors and adolescents.212
These principles are construed in a manner that consistently upholds freedoms and the full enjoyment of rights. National or international courts do not consider a policy that aims to abolish or diminish basic rights as valid. The Federal Supreme Court rendered a decision that aligns with the interpretation of the Federal Constitution and upholds the fundamental rights to freedom of thought, expression, artistic creation, and scientific production. In doing so, the Court declared the consent of the individual being biographed as unenforceable in relation to literary or audio-visual biographical works. Furthermore, the Court ruled that authorization from individuals portrayed as supporting characters, or their family members in the case of deceased or absent individuals, is not required.213
Although Brazil has made efforts to ensure compliance with Human Rights and international instruments, it is evident that progress has been slow. State courts, which are responsible for upholding fundamental rights, do not consistently prioritise and protect these rights. This failure to guarantee basic rights, such as freedom of expression, has resulted in a sluggish and ineffective judiciary. This is exemplified by the lengthy processes mentioned in the previous chapter (Gomes Lund and Aristeu Guida),214 which only reached a resolution after intervention from the Inter-American Commission and Court. These interventions attributed blame to Brazil for its negligence in addressing human rights issues and criticised the Brazilian judiciary for its sluggishness.
3.4 Brazilian organization for the protection of journalists
The regulatory authority overseeing journalists in Brazil is Fenaj (National Federation of Journalists). FENAJ assumes the responsibility of advocating for the rights and protection of journalists, as well as safeguarding the integrity and vitality of journalism as a whole within the Brazilian context. The establishment of the body took place in the middle of 1946 and received widespread recognition for its extensive and challenging efforts in formulating regulations that would effectively structure the profession and ensure the public's access to ethical and diverse knowledge. The body is inherently dedicated and accountable to upholding the principles of freedom of expression and communication, as well as democracy. These principles are considered essential and non-negotiable rights for individuals, alongside the ongoing advocacy for improved living and working circumstances for journalists in their professional pursuits.215
Fenaj demonstrated proactive involvement under the military dictatorship by advocating for journalists who faced life-threatening circumstances, displaying a strong commitment to securing the freedom and well-being of these individuals inside the profession. During the period of re-democratization in Brazil, Fenaj played a significant role, particularly during the Constituent Assembly that led to the establishment of the Federal Constitution of 1988. Fenaj coordinated the "National Front for Democratic Communication Policies" with the aim of preserving the mechanisms associated with the democratisation of information.216
Fenaj delivered an extensive study that chronicles the accounts of journalists who went missing during the period of dictatorship. The research elucidates the motives for the targeted persecution and provides detailed profiles of the affected individuals. This report provides an account of the period spanning from 1964 to 1985, which marked the conclusion of the military dictatorship in Brazil. It is important to acknowledge that the Brazilian dictatorship stood as one of the lengthiest in Latin America and, as extensively highlighted in this study, was characterised by a high degree of violence and cruelty. The regime relied heavily on tactics of terror and censorship to suppress dissenting voices.217
It is of utmost significance to highlight that Fenaj actively engaged in the Truth Commission, which was established to investigate the grave violations endured during the military dictatorship. The primary objectives of this commission were to rectify historical accounts and provide compensation to the families who have endured and continue to endure the consequences of these events.218
In line with the prevailing trend of violence, Fenaj annually publishes reports documenting the instances of violence inflicted against journalists and the media at large, highlighting incidents of attacks, homicides, and censorship.219 The 2019 Fenaj Report highlights significant references to the first year of the Bolsonaro administration's tenure. The previous head of state has garnered a negative image due to his propensity for engaging in direct confrontations with the media and journalists.220 The former President Bolsonaro issued a response to a legal action filed against him for alleged moral harm, whereby he claimed that the journalist in question had sought undisclosed reporting in return for engaging in sexual acts.221 The Court of Justice presided over the case and ruled that the former President was obligated to provide compensation to the journalist.222 It is noteworthy that instances of politicians attempting to undermine the credibility of journalists or engaging in other forms of violence, whether it verbal or physical, have occurred on several occasions in the past.223
Furthermore, the report from 2019 documented a total of 114 instances of press discreditation, along with 2 reported cases of homicide, 94 incidents of general aggression, 10 instances of censorship, 5 cases of judicial suppression of freedom of expression, and 10 instances of obstruction to professional practise.224 The numerical data is alarming, considering the very young age of the Democracy, which spans little over three decades. The situation becomes more alarming when considering that about 70% of these instances were perpetrated by the President of the Republic or by politicians in general.225
One of the individuals referenced in the aforementioned data is Romário da Silva Barros, a journalist who tragically lost his life as a result of three gunshots fired while he was inside his vehicle subsequent to a stroll around the outskirts of Rio de Janeiro. Mr Romario shown a strong commitment to the field of police journalism, diligently conducting investigations into the criminal activities occurring inside the city of Rio de Janeiro.226 Furthermore, within the instances of censorship, a federal court judge granted permission for a security guard to confiscate journalist Larissa Cavalcante's mobile phone and eradicate all visual and auditory content she had captured. This occurred shortly after the testimony of the former governor, who was under investigation for the misappropriation of public funds in the state of Amazonas. The investigations conducted so far have not yet identified a specific individual responsible for the incident.227
In April 2019, a notable instance of censorship was observed within the Federal Supreme Court, an institution entrusted with safeguarding and upholding the Federal Constitution. Minister Alexandre de Moraes issued a directive requiring the removal of a report from the website "O Antagonista" and the digital magazine "Crusoé".228 This report had cited the former President of the Court, Dias Toffoli, in an article discussing the involvement of businessman Marcelo Odebrecht in the car wash operation. The ruling further stipulated a penalty of $100,000 per day in the event of failure to comply.229 The duration of the censoring spanned a period of three days. Following the adverse consequences of the aforementioned case, Minister Alexandre de Moraes subsequently changed his first judgement and proceeded to rescind it. It is noteworthy to mention that the origin of censorship may be attributed to Alexandre de Moraes, the Minister of the Federal Supreme Court.230
In light of the examination of the Fenaj Report, the subsequent focus of our study pertains to the calendar year 2020. The existence of a worldwide health catastrophe has been established, which is associated with the COVID-19 pandemic. The significance of journalism and the media has reached unprecedented levels in the year 2019. Despite the tragic loss of numerous lives due to the Covid pandemic, journalism has demonstrated a partial restoration of its credibility, thereby reinforcing its indispensability for democratic societies. Furthermore, journalists have garnered increased professional recognition.231
In spite of several favourable developments for journalists throughout the year, there was a notable rise in the frequency of instances, totalling 148 incidents. These attacks included 2 instances of fatal violence, 85 cases of censorship (well described in the report from 2020), 16 instances of restrictions on freedom of expression by legal means, and even 152 instances of press discreditation.232
In contrast to the categorization of instances in the 2019 Report, which mostly included politicians in a generic sense, the 2020 Report highlights the President of the Republic as the primary target, accounting for just over 40 percent of the attacks made. Subsequently, public officials and politicians also made a significant number of attacks. One notable instance of censorship is to Empresa Brasil de Comunicacões - EBC (is a state-owned enterprise that has a media conglomerate within the Brazilian context.), which saw no less than 76 instances of censorship during the year 2020.233 This is due to the fact that a journalist used the word "dictatorship" to describe the era spanning from 1964 to 1985 in a report, but on a separate occasion, restrictions on freedom of the press were also rejected. The yearly study on violence against journalists and freedom of the press in Brazil, which is published by Fenaj as indicated before, was discontinued subsequent to its disclosure of instances of censorship targeting the EBC.234
In relation to the restriction of freedom of expression, a judicial decision in Rio de Janeiro Court of Justice has imposed a prohibition on "TV Globo" from publicly publishing papers pertaining to the money laundering235 in the office of the former state representative, Eduardo Bolsonaro (son of former President Bolsonaro).236 The court ruled that there is a potential for harm to the reputation of the incumbent senator. The appeal brought by TV Globo was denied by a minister of the Court of Justice of Rio de Janeiro, therefore upholding the judge's ruling. The procedure maintains a high level of confidentiality. It is noteworthy to add that Flavio Bolsonaro and 15 other individuals have been formally accused by the Public Ministry of Rio de Janeiro for offences related to criminal organisation, embezzlement, money laundering, and misappropriation.237
In the ongoing examination of the reports compiled by Fenaj, the investigation has progressed to the year 2021.238 This particular research examines the increasing number of aggressions experienced by journalists directed for the former President, Jair Bolsonaro, as documented by Fenaj.239 The reports for the years 2019 and 2020 indicate an increase in incidents of hostility towards journalists since Mr. Bolsonaro became a President. Based on Fenaj's analysis, it is evident that instances of aggression and violence have not exhibited a decline in comparison to previous years240. On the contrary, these figures have persisted and are currently on an upward trajectory. Notably, the President has adopted a stance of direct persecution towards the media, asserting in his speeches that it serves as a purveyor of fabricated news.241 This rhetoric is characterised by the consistent utilisation of baseless falsehoods. In addition, during interviews, Bolsonaro repeatedly told journalists to be quiet.242
In accordance with the aforementioned analytical framework, the notable point of focus was to the disparity in instances of censoring, amounting to 140 incidents in the calendar year 2021, as opposed to the preceding year, 2020, which recorded a total of 85 occurrences.243 Furthermore, it is worth noting that a total of 132 instances were recorded were the press was discredited. Additionally, there were 430 reported incidents of violence in a broader sense, and 15 cases were documented where freedom of expression was curtailed by court methods.244 The numerical disparities between two consecutive reports are striking. This denotes the nature of the governing system and the persistent challenges faced by democracy, as well as the media and journalism as a whole.245 This phenomenon may be seen via a substantial body of evidence, whereby news that deviated from government-sanctioned standards were subjected to attacks, often targeting the journalist responsible for its dissemination.246
According to the findings presented in the 2021 Report, a significant majority of the aggressions targeting journalists and the media at large were attributed to the President of the Republic, accounting for a total of 147 incidents.247 Subsequently, the leaders of EBC, a Brazilian communication company responsible for implementing the guidelines established by the Presidency of the Republic, were identified as the second most frequent perpetrators. Politicians are the third most prominent group responsible for aggression against the media and journalists, accounting for just over 40 instances.248 Additionally, Bolsonaro’s demonstrators and judicial authorities are also notable contributors to this phenomenon. The actions of public leaders and government officials displaying aggression prompt us to reconsider the effectiveness of the State in upholding the essential guarantees and basic values outlined in the 1988 Constitution.
One notable case examined by Fenaj pertains to the censorship faced by journalist João Renato Andrade during his coverage of President Jair Bolsonaro's visit to Rio Branco. Andrade, who worked for the newspaper "O Estado de S. Paulo," garnered attention due to his subsequent dismissal from his position as chief of staff of the Municipal Secretariat for the Environment by the city's mayor. The act of resignation transpired subsequent to the journalist's interrogation of the president at a formal news conference.249
A notable incident pertaining to the curtailment of freedom of expression occurred involving journalist Guilherme Amado, employed as a reporter for the publication "Época". The Attorney General's Office in 2021 issued a subpoena to Amado, requesting the submission of journalistic materials pertaining to the potential involvement of the Brazilian Intelligence Agency in providing support for Senator Flavio Bolsonaro's defence in a money laundering and corruption case. The Attorney General's Office, cognizant of the constitutional privilege of source confidentiality, sought to exert pressure on the journalist via the issuance of a subpoena.250
Based on the analysis of available records, it is evident that the nation has seen a significant increase in violence. Additionally, there have been instances when access to information has been restricted via legal channels and by public authorities, perhaps with the intention of concealing information that is of significant public importance. In conjunction with the actions undertaken by former President Bolsonaro, the press has exhibited the government's endeavours to undermine the credibility of media outlets, press organisations, and journalists. This strategy aims to discredit the information and news disseminated by these entities, thereby leading to the replication of hostile behaviours by individuals who align with the government's stance.251
The last report under analysis pertains to the year 2022,252 a significant year in Brazil marked by the occurrence of general elections that resulted in the reinstatement of Luiz Inacio Lula da Silva as the President of the Republic. According to Fenaj, there has been a drop in instances of direct attack against journalists during the time after Lula's re-election, in comparison to the same period of the previous year. This development provides some alleviation, but it is important to note that the credibility of the media, which was weakened during Bolsonaro's tenure, still need restoration. 253
Despite a modest decline in the incidence of aggressions against journalists, the magnitude of such incidents remains noteworthy.254 It is noteworthy to remark that Fenaj filed a complaint throughout the year on the instances of violence that transpired, with the aim of providing assistance to all the victims and exerting pressure on the relevant authorities to expedite the investigative process, so ensuring that all perpetrators are duly held responsible.255 In relation to the former President Bolsonaro, journalists obtained a significant triumph, namely the legal conviction issued by the São Paulo judiciary, which found him guilty of causing collective harm to the journalistic profession.256
It is noteworthy to highlight that the examination of the reports reveals an escalating trend of attacks targeting journalists, the press, and the media at large. In addition, this has resulted in limited availability of information and restricted freedom of expression within a nation that has previously encountered violence and a dearth of safeguards. In Addition, the Federal Constitution of 1988 envisions the principles of freedom and fundamental rights which brings the right to equal treatment without regard to occupation should be universally ensured.
Consequently, The Ministry of Justice and Public Security257 established the Observatory of Violence against Journalists and Social Communicators in 2023258 in response to the growing apprehension surrounding the surge in violence and censorship targeting the media, journalists, and the press as a whole. This observatory has been tasked with consolidating data and providing recommendations for addressing the challenges associated with attacks against media professionals on a national scale.259 Furthermore, the composition of the Observatory will consist of scholars, jurists, and representatives from organisations advocating for freedom of the press and expression, such as Fenaj and other non-governmental institutions.260
3.5 Freedom of the Press Law
The regulation of Press activities was initiated in 1823261 by the enactment of a letter of legislation during the Imperial Empire. During the Republic period, two legislative acts were enacted, namely the legislation of 1953262 and the subsequent law of 1967,263 which repealed the former. The last law was formulated within the context of the Military Dictatorship.
The advent of the Military Dictatorship and the subsequent enactment of a new legislation governing press activities resulted in the revocation of several privileges, as one may envision. The 1967 statute remained in effect until its assessment by the Federal Supreme Court in an Argument of Non-compliance with a Fundamental Precept (ADPF 130-7)264 the court's ruling determined that the legislation was deemed illegal due to its infringement upon basic rights as stipulated by the 1988 Constitution. Therefore, with the ruling of ADPF 130-7, the legislation was formally deemed illegal and then revoked in its entirety in 2009.
The reason for this is because the legislation was written during the tenure of President Castello Branco, a military officer, who seized power in a coup d'état, so instigating the Military Dictatorship. In the context of an authoritarian system, the National Congress, consisting of the Senate and the Chamber of Deputies, had severe limitations in its ability to engage in open deliberation and exercise independent voting rights pertaining to legislative matters, including the press legislation.265
It is crucial to acknowledge that subsequent to the enactment of the Press Law, the military administration implemented further and stringent limitations on the endeavours of journalists and media organisations.266 The expansion of sanctions for press offences under the National Security Law gave rise to this situation. The siege was carried out under the timeframe of Institutional Act No. 5, which spanned from December 13, 1968 to December 31, 1978, and conferred extensive authority to the Executive branch.267
Hence, the establishment of the Constituent Assembly in 1988 prompted the expectation that the 1967 law would be automatically invalidated due to its non-conformity with the prevailing circumstances. The new Constitution, regarded as a safeguard, was anticipated to facilitate the expansion of legislation, particularly pertaining to the press and media, thereby broadening their scope. However, this occurrence happened just in the year 2009, as previously indicated, when the Federal Supreme Court commenced its deliberation on ADPF 130-7.268
The Partido Democratico Trabalhista (Democratic Labour Party) initiated the filing of an Argument of Breach of Fundamental Precept (ADPF) before the Federal Supreme Court. Based on an analysis conducted by the Brazilian Bar Association, it is observed that the press law, despite being declared unconstitutional, remained in effect for a period of twenty years following the promulgation of the constitution. This delay can be attributed to both the lack of initiative on the part of those responsible for challenging laws and the well-known sluggishness of the judicial system in addressing such challenges.269 The party argued that Law No. 5.250/67 was incompatible with the Federal Constitution of 1988, specifically with regard to Article 220, paragraph 1. This provision prohibits the inclusion of any provision in a law that could impede the full exercise of journalistic freedom of information through any means of social communication. The party's argument was based on the constitutional provisions outlined in Article 5 (specifically items IV, V, X, XIII, and XIV) of the 1988 Constitution.
Therefore, the applicants requested that the legislation should not have complete approval under the 1988 Constitution, and that certain parts of the press law contradict the requirements outlined in the Federal Constitution.270 The Federal Supreme Court conducted a comprehensive analysis of the legislation as a whole and determined that the Press legislation is incompatible with the new constitutional order. This decision reflects a strong rejection of the authoritarianism that permeated the law in its whole.
The Rapporteur Minister Carlos Ayres Britto (from Supreme Court) argued in his vote that freedom of communication is a constitutionally protected fundamental right that should not be limited. He emphasised that this freedom is an integral aspect of journalistic activity and the press as a whole, and plays a crucial role in the advancement of society. By reaching a wide audience, communication serves as a means to disseminate ideas and shape public opinion. The Minister Rapporteur underscored the crucial significance of ensuring the unrestricted exercise of the press. This recognition stems from the understanding that the press serves as a mechanism of oversight for both society and the State, with the objective of fostering diversity in the dissemination of pertinent information, including facts, news, and opinions that are of interest to the general population. In essence, the press plays a vital role in enabling political, cultural, and social pluralism.271
Therefore, the exercise of freedom of the press must adhere to the constitutional provisions outlined in Article 220 and the principles outlined in Article 5 of the Constitution. Based on the aforementioned considerations, Minister Carlos Britto reached the conclusion that the only permissible limitations on freedom of the press are those explicitly prescribed in constitutional provisions. He asserts that ordinary law should not be allowed to place constraints on this fundamental right, which inherently enjoys comprehensive protection.272
Hence, the Rapporteur expressed their vote in favour of deeming the Press Law incompatible with the prevailing constitutional provisions. This determination is based on the argument that the limitations imposed by the aforementioned law are not in accordance with the principles enshrined in the 1988 Constitution. Furthermore, it is noted that the law in question was enacted under an exceptional regime by the Brazilian State, which does not align with the interests of the general public.273
Following the comprehensive annulment of the 1967 legislation by the Federal Supreme Court, Brazil no longer had a basic regulatory framework governing press activities. Apart from the mechanisms outlined in the Federal Constitution, no further legislation has been enacted to govern the press in Brazil. Currently, there exists no legislative framework safeguarding the press against censorship or ensuring people' access to comprehensive information.
Chapter Concluding Remarks
Upon analysing the chapter at hand, which focuses on the Brazilian legal system and domestic legislation, it becomes evident that it is feasible to ascertain the legal provisions outlined in the 1988 Constitution pertaining to freedom of expression and freedom of the press. Furthermore, this analysis sheds light on the application of these provisions within the internal State Courts. The identification of a certain fragility is evident in the articles pertaining to basic rights under the Federal Constitution, since these concepts should ideally not overlap or possess varying degrees of significance. This phenomenon may be noticed in relation to the legislation governing the press in Brazil. The revocation of the press legislation Law No. 5.250/67, ADPF 130-7, resulted in the absence of a fundamental regulatory framework governing press operations in Brazil. Apart from the processes outlined in the Federal Constitution, no further law has been established to govern the press in Brazil.
Consequently, a legislation that safeguards the press from censorship or ensures unrestricted access to complete information is absent. The evidence supporting this claim is found in the Reports published by Fenaj (National Federation of Journalists), which document a considerable number of attacks suffered by the press. These attacks not only started by the head of state, but also through the judiciary, which has, on multiple occasions, engaged in information censorship and attempted to suppress journalists through intimidation. Judges have a certain role within the State, which therefore affects their function. Similarly, politicians as a collective, by means of their oratory, have undermined the credibility of the media and journalists, hence fostering scepticism among the populace towards the information disseminated by journalistic outlets.
Furthermore, during the examination of the Brazilian legal system, it was observed that despite the presence of clearly defined provisions in the constitution, the Supreme Court sought guidance from the Inter-American Court's jurisprudence to support its rulings. Additionally, the Supreme Court made references to the American Convention in certain decisions as part of their legal reasoning and arguments. It is crucial to reiterate the significance of international instruments within Brazilian legislation, particularly in the Federal Constitution. Many of its articles, referred to as fundamental rights or ironclad clauses, are based on the Universal Declaration of Human Rights. This underscores the ongoing influence of international law in guiding Brazil's domestic legislation.
Ultimately, there has been a discernible rise in instances of censorship and limitations on freedom of expression inside Brazil, with an increase in the number of attacks experienced by journalists and the media at large. The current situation suggests that politicians and public officials have leveraged their authority to suppress media outlets and journalists, since the press no longer has regulations.
