“It was them”: Lynch mob journalism, Brazilian style. Veja issues a peremptory verdict in case of the parents of a young girl killed in a fall from a São Paulo high-rise condo, reportedly with signs of previous physical violence — a “moral panic” case that has taken up at least half the ink and airtime in Brazil for weeks now.The police investigation has not yet concluded. And Veja does have a poor track record when it comes to prognosticating guilt and innocence. See, for example, Veja Só: Editorial Integrity at Brazil’s Grupo Abril.
Kucinski In Praise of the Press Law (Google Documents). The article appears today in the Observatório da Imprensa (Brazil).
I am departing from my usual habit of providing an interlinear translation — the original text, followed by its translation — because, well, because doing that is a time-consuming pain in the ass.
I used OmegaT to translate the text much more quickly and efficiently. I have done my best to translate accurately.
One of the greatest sources of culture shock here in Brazil is the debate over the 1967 Press Law, a dictatorship-era measure that among other things (1) makes slander, defamation and “vituperation” criminal, not civil, offenses; (2) requires journalists to be registered with and licensed by the state, and (3) in an article making the right of reply obligatory, provides a weird exception to the requirement in the event the reply to which the offended has a right is deemed offensive to the publication he or she feels offended by.
The Supreme Court recently struck down a number of these provisions. See
Every gringo libertarian bone in my body screams that this can only be a good thing. See, for example
Civil remedies, with swift resolutions and appropriate damages awarded by a competent court of law, are the proper way to people to stop lying about and slandering you.
Reasonable people will naturally tend to stop paying good money for news organizations that regularly lie to them, if that fact is pointed out to them.
Journalists can be trusted to abide by the canons of professional ethics. Journalists who fail to do so join the ranks of the unemployed along with Stephen Glass, Judy Miller, “Jeff Gannon” and Jayson Blair.
Not all of this applies so readily to the case of Brazil, however, where media ownership is more concentrated than frozen Florida orange juice inside a black hole in space, the wheels of justice grind exceedingly slow, damages awarded are not sufficient economic deterrents to the kind of conduct in question, jabaculê rules the day, and art of the media-driven gabbling ratfink is something of a national blood sport.
Which partly explains why Bernardo Kucinski, a veteran of the dictatorship-era leftist “alternative press” — I have been reading his history of that movement lately — disagrees with my libertarian instinct. His argument is a familiar one: That the old litany about the sacred “freedom of expression” opens the way for jaw-dropping abuses of said “freedom.” As he writes:
One of the specous arguments against the Press Law is that Brazil is the nation with the most lawsuits against journalists. This is the case because Brazil is the country whose journalists engage in the most slander and defamation.
There may be some truth to that, although I do not know of any comparative studies on the subject. I can certainly think of plenty of anecdotal evidence to back the contention, though. Another factor: Brazil is an insanely litigious place in general.
On the other hand, civil suits seem to be working more effectively these days, though they get little publicity. See, for example
At any rate, I wanted to clip the argument to file. This is a fascinating debate because it is so foreign to the New York Times v. Sullivan standard one is familiar with back in the good old USSA.
The Sudden Death of the Press Law
By Bernardo Kucinski, Observatório da Imprensa, April 26, 2008; reproduced from Revista do Brasil No. 23, April 24, 2008
Brazil no longer has a Press Law. The Supreme Court, without waiting for Congress, struck down 20 of its 27 articles, among them the three most important ones -– 20, 21 and 23, which punish crimes of slander, defamation and injurious vituperation. This was the principal victory of a powerful campaign by media owners against the Press Law, supported by some compliant journalists and even by organizations that defend freedom of the press.
The campaign was so heavy that Senator Expedito Filho (PR-RR) withdrew a bill increasing penalties for crimes against honor practiced on the Internet. The Senator was intimidated by the accusation of “launching an assault” on freedom. That is the shibboleth of this campaign: labeling any attempt to control the abuses of the media as “an attack on freedom of the press.” Even abuses against personal reputation. This is an extension of the neoliberal worldview to the sphere of morality.
We all know that a single accusatory headline, even a false one, can destroy the most solid of reputations, of persons, firms, and even brands. Imagine this repeated, 10, 20 times, for an entire month? This is what is known as the editorial strategy of “campaign journalism”. The victim is crushed, whether or not he or she has committed any actual misdeed. He or she is summarily condemned according to the rules laid down by the media, not by the rules of Justice, which imply the presumption of innocence, evidence of the truth of the accusation, the right of cross-examination and the right to a defense. Examples include the Estado de S.Paulo’s campaign against the Bolsa Família family subsidy program, Veja’s crusade against José Dirceu, and the Folha’s campaign against Força Sindical. The objective is to demolish reputations, not necessarily to report the truth or denounce crimes or irregularities, which are the legitimate and indispensable functions of the press.
Front-Page Headlines
“Campaign journalism” emerged more than 150 years ago, when the introduction of the rotary press obliged the media barons to sell many more copies in order to recoup expenses. The famous Hearst newspaper organization ran many such campaigns, including campaigns against the abuses of the railroads. In this way, it also legitimated the press as a spokesman for the interests of society at large. Thus was born the “fourth estate,” and the perception by newspaper owners that they could influence the fate of persons, parties, institutions and even the nation.
Hearst also got us into the Spanish-American War.
When the Folha defended the “Rights Right Now” campaign in the 1980s, a noble cause in the interests of society as a whole, it increased in stature. The Estadão’s campaign in favor of recovering the Tietê River and preserving the Atlantic rain forest also served the public interest, as did its courageous series on “The Killers of the 18th Battalion”. The paper shook the leadership of the state military police, which was paralyzed in the face of a death squad made up of police troopers from the 18th Battalion of the Capital, suspected of assassinating PM Col. José Hermínio Rodrigues, who was investigating them.
That series on the “Killers of the 18th” was extraordinary. The problem is that the story is not over yet, but the tight coverage, by Marcelo Godoy and team, has stopped. Which is worrisome. This is a risky kind of story to cover. See
- São Paulo: “Photos Show That the Killers of the 18th Executed 2 Patsies to Cover Up Massacre”
- São Paulo: “Technically, No Death Threats By Killers of the 18th,” Says PM
- Estadão: “A Death Squad Murdered the Colonel”
But the most typical example of campaign journalism in recent months was that run by O Globo in December against the Statute on Children and Adolescents. It ran ten major feature articles, all with front page headlines, some of them occupying an entire page, with six-column photos. The real objective of the series was hidden from the reader, but all of the headlines and reporting were oriented toward inducing the reader to support a reduction in the age at which a person can be tried as an adult. For example: “Of juvenile offenders, 80% flee without serving their sentence”.
Nothing But Insinuations
The Estadão launched a powerful campaign against deforestation in Amazônia. It ran nine major articles, many with screaming photos and six-column front-page headlines. But the target of the coverage was more the government than it was the economic groups who grow rich from illegal extraction of hardwood and burnoffs that prepare the ground for the planting of monocultures such as soy.
I actually remember seeing an infographic that showed that a very large proportion of the desmatamento in the region occurred on latifúndio lands.
There are many newspaper campaigns against public policies and laws, such as this one against the Press Law, or charging the state with failing to perform its functions. But few campaigns against economic power. Imagine if the Estadão or the Folha were to mount a campaign against road tolls in São Paulo that amount to extorsion? Unthinkable, not after these two newspapers mounted campaigns to privatize the highways.
Newspapers also run campaigns designed to blackmail and intimidate. That was how Assis Chateaubriand pressued Count Matarazzo to donate money to the São Paulo Art Museum and at the same time intimidate other business leaders of the era. Like the gangster who orders a shopkeeper beaten when he refuses to pay protection, in order to set an intimidating example to the other shopkeepers.
The campaign against the Press Law was unleashed after the Universal Church went to court to defend itself against articles published in the Folha it considered defamatory and slanderous. The Folha began to attack the Church for engaging in what it called “bad-faith litigation” because it filed lawsuits simultaneously in various parts of the country. The Penal Code defines bad-faith litigation as litigation in which one of the parties “alters the truth of the facts”, or “conducts itself recklessly during the proceedings”. This definition also fits the Folha’s conduct like a glove, as when Elvira Lobato’s story states, without limiting itself to the facts, that “one hypothesis is that the tithes paid by the faithful are being laundered in fiscal paradises”. It is one thing is to suspect an irregularity and investigate it; another to lend a suspicion the color of fact.
Terming it an “hypothesis” is not the same as “lending a suspicion the color of fact.” But the “hypothesis” should be attributed to the person proposing it. Otherwise, it remains a rumor for which no one apparently wants to take responsibility.
I personally do not know what to think about the alleged SLAPP suit against the Folha. The economic power of the Church, the emergence of its Record network as a rival to Globo, and the potential use of Record for Globo-style political king-making, are all undeniably matters of public interest. Elvira Lobato is a savvy veteran reporter, who, if she has an an axe to grind, wields it without fear or favor, it seems to me.
Laundering money is a crime. In making this insinuation, without evidence, the Folha may have committed the crimes of calumny (unduly accusing someone of a crime) and defamatioin. It is up to the courts to decide whether the Folha committed these crimes. The newspaper claims the church is trying to intimidate it. That may even be true. But isn’t the Folha, for its part, not intimidating the courts by constantly dealing in its pages with litigation in which it is an interested party, and which is still under deliberation?
Heavy insinuations were also made against Paulo Pereira da Silva, the federal lawmaker known as Paulinho (PDT-SP), and Força Sindical, without any evidence that a crime had been committed. Mere insinuations. Why should the Folha be able to repeat one insinuation after another against Força Sindical, while Força Sindical cannot file one lawsuit after another against the Folha?
I am not familiar with this case.
Shooting Themselves in the Foot
One of the specous arguments against the Press Law is that Brazil is the nation with the most lawsuits against journalists. This is the case because Brazil is the country whose journalists engage in the most slander and defamation. Accusations have become standard procedure in our investigative journalism. At times, they simply curse people, which is what is known as the crime of vituperation. Read the following paragraph typical of this type of language.. A journalist writes of Paulo Pereira: “The union presided over by Paulinho mixes a retrograde style of politics with the negation of politics”. So far, a value judgment that the journalist has a perfect right to express. But now he turns to insults: “This miniature Paraguayan Lula announces, between expletives, that he is going to clog the courts with lawsuits against the Folha …”. In a single phrase the journalist insults Lula, by using him as a negative point of comparison, and the Paraguayan people, who have nothing to do with the story. And it insults Paulo Pereira.
Under that standard, I myself would liable for defaming the proud and long-suffering Paraguayan people, with their great folk-musical tradition, every time I make a wisecrack about “the Great Sino-Paraguayan Silk Road” — which makes a similar play on the (not undeserved) reputation of Paraguay as an endless source of pirated and counterfeit consumer goods for the store shelves of the 25 de Março here in São Paulo.
To me, the level vituperation in the Brazilian media, while jaw-dropping, is not nearly so jaw-dropping as the volume of out and out lying.
These are the sorts of journalists who want immunity. They allege that for crimes of vituperation, slander and defamation, the Penal Code is sufficient. But as jurist Miguel Reale said to the Folha, “the attack on reputation published in a medium of mass communication reaches a very large number of persons, which is not the case with defamation made inside a room or by letter”. Jurist Walter Ceneviva also writes in the Folha that common law is not equipped to deal with the civil and criminal aspects of mass communication.
Another legal expert, Victor Gabriel Rodriguez, writes, again in the Folha, that journalists have been duped by their bosses and wind up shooting themselves in the foot. The press law gives the journalist more ample rights of defense — including the right to preemptive defense, preventing the case from going to trial. “In the balance between individual rights and freedom of information, the Press Law is the lesser of two evils,” he says.
A new Press Law is said to be in the works. It will be interesting to see what they come up with.
Filed under: Brazil, Journalism, Media, Regulation
