Brazil: Supreme Court Acts to Prevent the Silencing of Journalists through Judicial Harassment

In a landmark ruling, Brazil’s Federal Supreme Court (STF) has declared judicial harassment of journalists unconstitutional, marking a significant step towards protecting press freedom in the country. The decision will significantly curtail the misuse the legal system to intimidate and silence journalists. The case was filed by our partner, the Brazilian Association of Investigative Journalism (Abraji).

The court’s decision on 22 May 2024 defined the practice of filing numerous lawsuits on the same issue in different locations with the intent to harass the defendant and complicate their defence as “judicial harassment”. This tactic has frequently been used to stifle journalistic work by overwhelming journalists and media outlets with costly and time-consuming legal battles.

The case of Brazilian journalist and author JP Cuenca starkly illustrates the profound toll of this type of harassment. In 2020, Cuenca faced more than 140 lawsuits related to a single tweet criticising the convergence of evangelical and government politics during Bolsonaro’s presidency. Pastors from the Universal Church of the Kingdom of Christ, a powerful multinational organisation, filed these individual lawsuits.

These lawsuits were filed in every state of Brazil except the one in which Cuenca lives, requiring him to attend each one in person – a situation that would have been impossible without the COVID-19 pandemic’s restrictions. Out of the 143 lawsuits, more than 130 have been successfully defended or dismissed. Media Defence has supported Cuenca since 2020. Despite these legal victories, the impact on Cuenca’s well-being and work has been severe.

This abusive tactic of using the courts to muzzle the press had been intensifying, with Abraji referring to it as the “new frontier” of intimidation of Brazilian journalists in 2021. Although freedom of expression in Brazil has improved over the past two decades, there was a significant backslide under President Jair Bolsonaro. Aggressive rhetoric from the administration towards the media fuelled an increasingly hostile environment for journalists. While the election of Lula da Silva in 2022 restored some trust and stability, a substantial 15% of Media Defence’s total caseload continues to be from Brazil, many of which could be classified as judicial harassment.

The Supreme Court ruling aims to protect journalists from this type of lawfare. The decision states that once the practice of judicial harassment is established, the defendant can request that all relevant cases be consolidated into one case heard in their city of residence. Crucially, the Court also ruled that journalists or media outlets can only be found liable in civil defamation cases where there is “unequivocal” evidence of malicious intent or serious professional negligence.

The actual malice standard, now recognised by the Brazilian Supreme Court, originated in the caselaw of the United States Supreme Court, in the landmark case of New York Times v. Sullivan, and has been used by several courts in the region, including the Supreme Court of Justice of the Nation of Mexico, the Constitutional Court of Ecuador, and the Supreme Court of the Nation of Argentina. The Inter-American Commission on Human Rights has the same understanding, and the Inter-American Court of Human Rights has recently interpreted restrictions to Article 13 of the American Convention with similar lenses.

Importantly, in defamation cases involving public officials, public figures and matters of public interest in a broader sense, the plaintiff must demonstrate, in addition to the common elements of defamation, that the defendant knew the information was false or acted with reckless disregard for the truth, that is, with ‘actual malice’.

The decision resulted from constitutional challenges by Abraji and the Brazilian Press Association (ABI). Expert media and press freedom lawyer Taís Gasparian, who acted for Abraji, stated that “the decision is a significant advancement in combating judicial harassment and demonstrates that the Brazilian judiciary values freedom of expression. Journalists and media outlets will be able to defend themselves more effectively when faced with lawsuits aimed at silencing the press.”

Media Defence welcomes this decision as a major step forward for press freedom and the safeguarding of independent journalism in the region. Coordinated legal attacks, intentionally filed in multiple locations to complicate and increase the cost of defence, are a threat to democratic rights and can be a harrowing experience for individual journalists—this decision addresses that threat head-on.

Interested in this topic?

Read our free resource on SLAPPs (Strategic lawsuits against Public Participation) here and here.

Read more about our work combatting SLAPPs and abusive lawsuits.