4. Freedom of Expression and Democracy in the Brazil
This chapter aims to provide a concise overview of two significant events: the 2016 Impeachment and if the right to freedom of expression has been crucial to ensuring democracy, together with an examination of the overall function of the media. Understanding the actions of the press, journalists, and media during these two periods is of paramount importance. Additionally, recognising the pivotal role that freedom of expression has played in the development of Brazil's young democracy is crucial, particularly in light of the country's recent experiences with authoritarian and denialist governments.
4.1 The Media’s influence in the 2016 Impeachment procedure
The impeachment of former President Dilma will not be extensively discussed in this study, since it is not the primary subject of the core analysis. However, the media's role in the process of Dilma's mandate will be emphasised.
When examining the efficacy of the prominent Brazilian media, it is evident that the interaction between the media and political spheres manifests in many contexts, particularly regarding a distinct societal domain, namely the economic sphere.274 The media discourse prominently features the widespread advocacy for neoliberalism, a political-economic ideology that has traditionally garnered support from major communication channels. Neoliberalism advocates for less government intervention in the economy, decreased funding for social programmer, fiscal austerity measures, privatisation, and the promotion of free trade.275 Many prominent private enterprises, including media conglomerates like Grupo Globo owned by the Marinho family and Grupo Folha276 owned by the Frias family, advocate for economic liberalism.277 The ideals advocated by the neoliberal political-economic movement provide these corporations with the potential to expand their operations to the extent of establishing monopolistic and oligopolistic market structures.278 The aforementioned features, which delineate some stances of this political-economic movement, confer advantages onto prominent private enterprises.279
In the given scenario, the media had a significant role in bolstering the notion of commencing the impeachment proceedings against Dilma Rousseff, maybe even preempting the activities of the opposition.280 During its initial coverage, the press failed to establish itself as a credible source for defending the initiation of the process impeachment or expressing support for the president's departure. However, the primary discursive approach employed by these media outlets was to provide a platform for opponents while simultaneously attempting to discredit Dilma’s viewpoints through aggressive criticism.281 The news and journalistic coverage, mostly conducted by "Folha" and "O Globo," exhibit a pronounced inclination towards supporting the impeachment process.282283
The initiation of the impeachment process against Dilma was primarily based on the legal justification of the "fiscal pedals".284 However, further justifications for the termination of the President's mandate were also identified by both Folha and O Globo. Both publications provided a rationale for their support of this procedure, citing the prevailing economic and budgetary crisis and attributing it to Dilma's alleged mismanagement.285 The adverse economic situation was further linked to its failure to engage in meaningful communication with the Legislative branch.286 The aforementioned media aimed to deconstruct the notion of a coup that was unfolding in the nation, by decreasing and discrediting Dilma's statements as she denounced the maneuvers of her opponents involved in the impeachment process.287 In this context, it is evident that both media, namely Folha and O Globo, adopted a favorable stance towards the impeachment of the President.288289
It is essential to underscore that the significant private media entities in Brazil actively contributed to the consequential occurrences of 2016. The media has played a significant role in shaping a collective perception of President Dilma Rousseff, particularly through the influence of major conglomerates such as Grupo Globo and Grupo Folha. This influence is not solely attributable to the challenges faced by the president in her governance, but rather stems from the perception that Dilma's economic management skills were lacking, rendering her unsuitable for advancing the interests of prominent private enterprises, particularly within the communication sector. These enterprises predominantly espouse a political ideology rooted in liberalism as mentioned before.290
In 2018, the apprehension of Luiz Inácio Lula da Silva, a prominent figure from Workers’ Party, occurred in connection with corruption allegations that were brought to light by the Car Wash investigation. Due to a legal dispute and the backing of the mainstream media, the prominence of the workers' party became a focal point of debates, thereby giving rise to the phenomenon of anti-workers party. In conjunction with the elevated levels of criminal activity, the dearth of public safety measures, and the prevailing economic circumstances, these factors together precipitated the impeachment of President Dilma Roussef in 2016. In relation to this matter, the widespread circulation and distribution of misinformation has contributed to the amplification of moral panic within the political landscape of the elections, so creating an opportunity for the opposing party.291
The publications played a significant role in providing arguments to the opposition due to their utilisation of freedom of expression as a platform for distributing fake news and deviating from the political party doctrine of former President Dilma. It is noteworthy to emphasise that the press operates without specific regulatory legislation, and instances of false contextual news are evaluated within the framework of the criminal code, particularly in relation to charges of slander and defamation.292
4.2 Since the turn of the century, has the right to freedom of expression been crucial to ensuring democracy?
The concept of freedom of expression is often seen as an inherent individual entitlement, although it is crucial to maintain this right for the sake of the whole. The complete enjoyment of freedom of expression commenced with the implementation of the Federal Constitution in 1988. Prior to this occurrence, Brazil had a period of almost two decades characterised by a Military Dictatorship, during which human rights were not ensured, including the absence of freedom of expression. Journalists were subjected to persecution, torture, and even murder, as previously discussed in the preceding chapter.293 During the challenging age of dictatorship, there was a noticeable decline seen in the field of education, as well as in the media and press at large.294 The outcome led to the estrangement of the populace, who held the belief that Brazil was progressing and anticipated a brighter future, characterised by forthcoming elections and the selection of officials by democratic means.295 It is evident that the situation described deviates from the actual historical events, whereby Brazil had a prolonged period of limited rights, notably the curtailment of freedom of expression, spanning over two decades.296 During this period, journalists faced a binary choice: either adhering to the prescribed narrative dictated by the government or enduring severe persecution leading to fatal consequences.297
The contemporary polarisation seen in Brazil has given rise to the manifestation of authoritarian traits within a subset of emerging political figures. The recurrence of past patterns, such as the censorship of journalists, materials, and reports, as well as the curtailment of freedom of expression by judicial means, may be attributed to the assumption of power by former President Bolsonaro.298 Furthermore, individuals have increasingly embraced an extremist right-wing ideology that, as articulated in speeches, espouses support for traditional family structures and religious beliefs.299 These two aspects are closely tied to the patriarchal system, which traditionally upholds moral values and societal norms, while also emphasising a reverence for religious principles.300
Bolsonaro's public protests serve to assert his political authority and exert pressure on opposing social factions, such the National Congress and the Federal Supreme Court, in order to showcase the influence wielded by this politician.301 From this standpoint, it is evident that the Bolsonaro administration has become an active catalyst for conflicts among the three branches of power, using aggressive and authoritarian language, therefore perpetuating daily and frequent attacks on the aforementioned institutions, including the press.302
Regarding the topic's title, the answer is affirmative; one of the pillars of democracy, as detailed in this research, is freedom of expression, particularly the media that divulge information to society, investigate facts, and make public issues of concern. Popular fascination, such as government-related topics. With the emergence of Bolsonaro's authoritarian government, which had extremely high rates of attacks and aggressions against journalists, the press, and the media, the importance of the media became more apparent.303
In addition, after the election of Bolsonaro, a culture of hatred and attacks on democratic institutions304 began to emerge, as evidenced by the January 8 attack on the Planalto Palace, the National Congress Palace, and the Federal Supreme Court Palace.305 On January 8, 2023, a series of criminal activities took place at the headquarters of the Three Powers in Brasilia. These acts were perpetrated by Brazilian individuals who were protesting the inauguration of the incumbent president-elect and advocating for military intervention. The events of the day were seen as a significant setback to the democratic principles of the nation, accompanied by substantial damage to the facilities of the Planalto Palace, destruction of artistic artefacts, and attacks on the law enforcement personnel present throughout the incident. The incident led to the arrest of slightly more than 1,400 individuals.306 The three institutions, which represent democracy in Brazil, were criticised by opponents of the democratic system.307 The legislature itself, in the form of its politicians, officers, and the judiciary,308 practices censorship and restricts freedom of expression under the guise of their positions, tarnishing the reputation of the Federal Constitution because they use it to impose their wills and undermining confidence in a functioning democracy.309
5. Recommendation and Conclusion
The establishment of democracy in Brazil is very young, with a duration of less than three decades. Despite the nation having had one of its lengthiest periods without a dictatorship, concerns persist over state control over the media. The absence of a pervasive feeling of security and the ambiguity surrounding the actualization of freedom of information contribute to these apprehensions. By conducting an examination of international instruments, it has been ascertained that there has been notable advancement in the development of Human Rights. This progress is evident not only at the worldwide level, but also in the incorporation of these rights into the legal framework of Brazil.
In light of the United Nations' comprehensive efforts to enhance the European framework for safeguarding Human Rights, it became imperative for Latin America to undertake a comparative analysis of territories in order to establish a more expansive and encompassing codification of individual rights, ultimately leading to the development of the American system. The formation of the Inter-American Court of Human Rights in Latin America occurred about four decades subsequent to the establishment of the European Court of Human Rights. This analysis enables the comprehension of the jurisprudential impact exerted by the European Court on the American Court, as well as the mutual adherence of both courts to the advancement of fundamental rights and the condemnation of State Parties for non-compliance or violation of the Convention.
The safeguarding of freedom of expression is comprehensively guaranteed under the inter-American system. The Court's jurisprudence demonstrates its efforts to establish a significant correlation between freedom of expression and democracy. The establishment of such a relationship is obviously crucial, considering the democratic foundations that underlie the principle of freedom of expression. This highlights the significant importance of democratic monitoring, which is carried out through the media, public opinion, and facilitated access to information via the State. Therefore, it is possible to assess the advancements achieved by the Inter-American Court in resolving the case Gomes Lund v. Brazil. In this case, the Court demonstrated a keen understanding of situations when violations and breaches of freedom of expression and Human Rights occurred, while also emphasising Brazil's lack of expeditious resolution. Moreover, it is conceivable to understand Brazil's deficiency in efficiently enacting domestic legislative measures concerning the preservation of freedom of expression and the safeguarding of persons who use this fundamental right.
The bibliographical study of chapters three and four reveals that despite the constitutional provisions that safeguard freedom of expression, the power over information dissemination is mostly in the hands of major conglomerates. The acts undertaken by major communication corporations and their advertising, when in conflict with the values and principles of a democratic society, might create similar barriers that impede the enjoyment of the basic right at hand. Furthermore, it is evident that the Judiciary lacks the ability to provide decisions without imposing censorship, thereby impeding the freedom of the press. Among the cases examined in chapter three, a considerable number pertained to injunctions that enforced the recall of published materials (referred to as previous censorship), rather than engaging in a thorough analysis of whether harm was inflicted upon the reputation of the individual who claims to have been offended.
The annulment of Law No. 5.250/67, often known as the press law, via the case ADPF 130-7, has led to the lack of a basic regulatory structure that governs the functioning of the press in Brazil. In addition to the procedures described in the Federal Constitution, no supplementary legislation has been enacted to regulate the press in Brazil. Consequently, a legislation that safeguards the press from censorship or ensures unrestricted access to complete information is absent.
The impact of media on the impeachment of former President Dilma, as evidenced by the literature review on the actions of major communication corporations and their advertisers conflicting with democratic principles, can impede the exercise of freedom of expression. Of more significance is the organisational framework of the Brazilian press, which is controlled by a limited number of conglomerates. Furthermore, the impartiality of the press is fallacious, since it is often used as a shield to further the interests of certain political parties, candidates, or corporations. Since the era of dictatorship, prominent communication platforms have aligned themselves either in favor of or in opposition to certain matters, primarily within the realm of politics. Due to the lack of pluralism in the national press, most of the media outlets inevitably align themselves with a single perspective.
Recommendation
This dissertation began by analysing all international instruments in an effort to compare the European and American systems in order to comprehend how both operate and how the European Court of Human Rights affects the jurisprudence of the Inter-American Court. In addition, it was necessary to evaluate the instruments that deal with free speech. It was discovered that Brazil reported to the United Nations the implementation of a law on access to information, as the right to access information is also considered a right to expression. With a thorough examination of international instruments, it was possible to perceive Brazil's difficulty in adhering to Inter-American Court recommendations and rulings. This is because, despite having ratified a number of human rights treaties, Brazil has difficulty implementing them in practise. Therefore, the solution that the author suggests for this particular topic is to recommend that judges observe, in their decisions, the human rights treaties and conventions in force and the alignment of Brazilian laws to the set of treaties signed by Brazil in the area and apply them in domestic cases.
Furthermore, it has been observed that violence is an additional legacy inherited from the era of dictatorship. Additionally, it seems that the Judiciary lacks the ability to make decisions without engaging in censorship, therefore diminishing the freedom of the press. Among the identified cases, a significant proportion pertained to injunctions that enforced the recall of published materials (referred to as prior censorship), rather than engaging in a deliberation on the potential harm inflicted upon the reputation of the individual who alleges offence. In some cases, individuals were responsible for deciding the payment of substantial indemnities, while in other instances, they used the right of reply as a means of penalising the offending party. Notably, the duration of the imposed penalty for the aggrieved party often exceeded the time frame during which the offence was committed. In some instances, the Judiciary refrained from conducting fact-finding procedures to ascertain the veracity of information, due to concerns over potential harm. The author observed that a project aimed at establishing an observatory to safeguard journalists and the media at large is anticipated to be implemented in 2023. However, no formal report has been submitted nor have any outcomes been achieved by this entity so far. The author posits the idea of establishing a self-regulatory of Publicity. In this particular scenario, the implementation of such measures would be very advantageous, benefiting both society at large and communication enterprises.
However, following the ruling of ADPF 130 in 2009, a legal void emerged within the Brazilian legal framework. The sole foundation for the protection of press freedom became the Federal Constitution of 1988, which safeguards various fundamental rights, including freedom of expression in a broad sense, encompassing the freedom of thought and expression for the press, journalists, and media entities. Hence, the author acknowledges the necessity of enacting legislation pertaining to the press, considering the instances where news has been compelled to be removed or printed material has been confiscated, even subsequent to the annulment of the Press Law by ADPF 130. This underscores the absence of a definitive framework for the judiciary, which, as previously mentioned, encounters challenges in implementing international human rights law.
This dissertation posits that the phenomenon of media censorship has played a significant role in the erosion of democratic principles in Brazil. Despite its deep-rooted nature, Brazilian democracy continues to face the persistent risk of authoritarian regimes that use their political authority to suppress freedom of expression, making democracy a vulnerable entity. The assessment of the need of freedom of expression in relation to the dissemination of diverse information and the functioning of democratic processes has significant importance for society.
