Knight Center
Knight Center

JOURNALISM IN THE AMERICAS Blog

Eight tips for Brazilian bloggers who face judicial persecution



Brazilian bloggers and digital activists have become a constant target for legal attacks, mostly from public officials who seek the removal of content published on the web. Many of these are successful: a timeline produced by the Knight Center for Journalism in the Americas shows that, just in 2012, the country registered 16 cases in which the courts were utilized as instruments of censorship.

This year, in cases such as those of blogger Alcinéa Cavalcante (who had her current account blocked after being sentenced to pay R$2 million as compensation for damages to Senator José Sarney) and journalist Lúcio Flávio Pinto (sentenced to compensate communications businessman Romulo Maiorana Júnior for R$410,000) show that the legal system continues being used to undermine smaller information outlets and to silence critiques made by bloggers in Brazil.

The inability to bear the costs of legal representation and hire specialized legal guidance leaves bloggers more vulnerable to the actions of those who wish to stifle freedom of expression. With this in mind, the Knight Center spoke with attorney Camila Marques, of the Artigo 19 Legal Reference Center who offers here a list of advice. The organization is compiling data to create a Map of Violence against the Blogosphere.

According to Marques, the fear of legal sanctions shouldn't lead bloggers to precipitously take down the content in question. "People who are offended or judged precisely want the blogger to feel intimidated and remove their content with just a judicial or extrajudicial notice, without a removal order. We stand against this and would liken it to an act of self-censorship," she suggests. Below see her other tips.

1. Evaluate the type of notice received

Generally the first notification is not official, and can even be an informal communication. Therefore, it has no legal weight and doesn't require bloggers to take down the disputed content. If it is a subpoena, which corresponds to the initial phase of a court proceeding, it is essential to find a lawyer as soon as possible, as that marks the beginning of the legal proceedings, Marques said.

2. Respond to extrajudicial notifications in a complete and clear manner

"I always recommend that the person respond to all communications, including extrajudicial notifications, and present the reasons for the publication of the original material, with details: if it serves the public interest, if the blog has an informative function, if there was no intention to offend.  Clearly, it is worth mentioning the right to freedom of expression," Marques. "In case the notification refers to a copyright issue, it needs to be verified if in fact there is a legitimate claim, or rather, if the work being used really is under copyright protection. If so, take it down from the blog if there has not been authorized permission from the author."

3. Speak with a specialized attorney

It is always advisable to speak with a specialized attorney to have a better defense, even if you have only received an extrajudicial notification, but it is only required in case there is an actual proceeding. "Even if the publication is legitimate and doesn't break any law, we know that the Brazilian courts do not always think in proportion to the act or gauge the need for sanctions, which could lead the blogger to be sentenced to pay very high penalties.  The situation is complicated, as settlements are generally not good because they usually request that the publication is taken down and that no more content is published on the accuser, which violates freedom of expression," explains Marques. The risks of a legal proceeding should be verified with a lawyer and whether it is worth accepting the restrictive terms of an agreement. "Does the publication use offensive terms? Is it opinion or verified fact? Is there copyrighted material in a blog with commercial interest, with advertising? All these issues are weighted by the judge," she adds.

4. If you cannot hire a lawyer, find help with other organizations or with the public defender

Public defenders offer legal advice for free to those who cannot pay for the services of an attorney. Find the office in your state to check if you have access to their services.  Another option is to check the pro bono offices at law schools, such as the State University of Rio de Janeiro or the Pontifical Catholic University of Rio de Janeiro. Article 19's legal center, although it does not provide legal representation, can guide the blogger and pass along information about arguments used around the world about freedom of expression.

5. Learn (and cite) international standards

In proceedings involving freedom of expression, certain international trends exist which can serve as reference for those who are locked in a battle for the right to inform and provide opinions on the web. These trends reflect the concern of the Inter-American Human Rights System to guarantee that no restrictions on freedom of expression are imposed outside of those strictly necessary. Marques notes that typically bloggers are targets of four types of lawsuits to remove content: copyright, honor, privacy and brand protection. "In the case of an allegation of violating someone's honor, international standards affirm that only false facts can provide basis for a proceeding; verified facts would not cause any type of disproportional damage. It is worth highlighting that only facts can be disputed, opinions not based on facts are protected. People in the public spotlight need to have a larger tolerance since society's best interests are involved. If a blogger only has the intention to inform or provide their opinion, the judicial system should be more tolerant," explains Marques. Other arguments can be found in the "Comparative Analysis of National Jurisprudence with International Standards of Defamation" produced by the Article 19.

6. Do not pull any content before a judicial order

"People who are offended or judged precisely want the blogger to feel intimidated and remove their content with just a judicial or extrajudicial notice, without a removal order. We stand against this and would liken it to an act of self-censorship. There are defenses and arguments that exist internationally; therefore, we need to consolidate those into our national environment and make judges understand that there needs to be more tolerance toward critiques that favor freedom of expression. Brazil is one of the most intolerant countries to criticism and that prompts demands to removal content, it cannot be that way," observes Marques.

7. Bloggers have the same rights as journalists

Anonymity in the registration of blogs, official press credentials and protection of sources are some of the rights that, according to the Article 19, not only pertain to regular journalists, but are also extended to bloggers. "The act of disseminating information in the public interest does not require joining a professional organization or adhering to preestablished code of conduct," according to the center's handbook "O Direito de blogar" ("The Right to Blogging" in English).

8. Publicize judicial harassment

For Marques, publicizing information about the proceeding can help create a network of solidarity and action in favor of the blogger.  In many cases, the content in question passes on to other sites, which makes censorship more difficult. "Of course, it is necessary to be careful in publicizing the case. Assume an informative tone and avoid any type of offense or provocation to the plaintiff in order to not be open towards being sued again," she highlights. 

 



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