Knight Center
Knight Center


Brazilian Penal Code reform set to raise sentence for defamation to up to four years

height="257" José Sarney, president of the Brazilian Senate and principal author of the reform (source: EBC/CC 3.0).

In Brazil defamation currently carries a minimum sentence of only three months, but that could change to two years if a penal code reform project currently being discussed in the Senate is approved. The harsher penalties in the reform go against the course suggested by many civil organizations and Latin American countries, which have sought to decriminalize “crimes of the press” that have limited free expression and harmed many journalists in the region.

The previous Press Law, written during the Brazilian military dictatorship and revoked in 2009, recommended up to 3 years in prison for defamation – one year less than the maximum recommended in the reform, which recommends four years. The author of the reform, senator Pedro Taques, has been strongly criticized by lawyers and judges for his proposal.

One of the fiercest critics of the form is the lawyer and former Minister of Justice Miguel Reale Júnior, who said the current reform brings with it a “risk of international shame” for Brazil, said the website Consultor Jurídico. On Thurday, Feb. 28, Reale Júnior took part in a public hearing of the Senate special commission that is discussing the reform, according to the website Terra.

Reale Júnior is one of the leaders of the movement within the law community that gathered more than three thousand signatures in Sep. 2012 to ask for a delay in the project, said the newspaper O Globo.

Time seems to be one of the reform’s biggest problems. In only eight month, a commission of jurists named by the Senate has had to debate, plan, and write the most general and conceptual part of the law, review all types of crime covered by the law, and pull in all the so-called “extravagant laws” that are spread throughout the Brazilian Constitution. The rush was one of the reasons that lawyer René Dotti left the commission and joined the reform’s chorus of critics, said Globo.

The lawyer Thiago Bottino, a professor at the Fundação Getúlio Vargas and member of the Permanent Commission on Criminal Law of the Institute of Brazilian Lawyers (IAB), agrees. “The idea of the reform is to systematize the crimes, the sentences, etc. It’s dangerous to do that in only eight months,” Bottino said in an interview with the Knight Center. For some political analysts, the rush is because former president of Brazil and current Senate president José Sarney wants the reform to be passed during his mandate.

Bottino also emphasized the absurdity of the changes in relation to “crimes against honor.” “Calumny [falsely accusing someone of a crime], defamation, and injury [attributing to someone a quality that offends their honor or dignity] shouldn’t even be crimes. They don’t have sufficient weight to be taken to criminal court, they can be dealt with in civil proceedings,” he said. But why, then, have harsher sentences been suggested for such crimes? “I think, in a general sense, those in power have a bit of fear of the press, a discomfort. Making the penalties harsher for ‘crimes against honor’ might come from there.”

Other criticisms of the project have dealt with immaterial property crimes and cybercrime. The Public Policy Research Group for Access to Information (GPOPAI) of the University of São Paulo (USP) presented its proposals for the form in Oct. 2012. These proposals included dealing with piracy in civil – rather than criminal – proceedings.

For Bottino, the ideal would be for the project to be withdrawn from the Senate so that the commission could be restructured and have more time to work with the text and take criticisms into account. “It’s possible that the text could be changed in the Senate, but it’s better that it comes to a vote in a stronger form,” he said.