Abraji launches the Monitor of Judicial Harassment Against Journalists in Brazil

Abraji launched the Monitor of Judicial Harassment against Journalists in Brazil on the evening of Wednesday (April 24, 2024), with the goal of systematizing legal proceedings aimed at intimidating, undermining, and silencing journalistic efforts. The research uncovered the existence of 654 lawsuits across the country, focusing on 84 cases of judicial harassment. The launch event was held at the University of São Paulo Law School.

The research results, which conceptualized, mapped, and systematized data on the phenomenon of judicial harassment in Brazil, were compiled into a report available to the public in three languages - Portuguese, English, and Spanish. ACCESS THE REPORT HERE.

The report defines judicial harassment as "the use of judicial measures of intimidating effects against journalism in a disproportional reaction to lawful journalistic work on issues of public interest". It deals with lawsuits filed by individuals or entities, in a context of imbalance between the parties, to the detriment of the journalist, and which may have intimidating judicial consequences for the victim. The study highlights that the action must be evidently unfounded or that the procedural strategies used are abusive, causing exhaustion to the victim and prejudicing the exercise of their right of defense.

The data was gathered by documenting notorious cases, receiving reports from journalists and partner organizations, and compiling case law from the São Paulo State Court of Justice. A database was established, encompassing the analysis of 45 variables condensed into 14 categories. The spreadsheet containing the documented cases is publicly available on the Monitor’s website. Additionally, the website hosts a crucial complaints channel, designed for journalists and communicators who have been targets of abusive legal actions, accessible here.

The team, headed by Abraji’s legal coordinator, Leticia Kleim, gathered and analyzed a wealth of information. This included details about the plaintiffs and their lawyers, the defendants, the jurisdiction where the lawsuits were filed, the arguments and petitions submitted, the content of the journalistic material that triggered the legal action, the number of related lawsuits per case, and the outcomes at various stages of the judicial process, up to and including final judgment, if applicable.

The Abraji event at the University of São Paulo featured jurist and university professor Rafael Mafei as the moderator. He is one of the responsible parties for the Monitor, alongside researcher Bianca Villas Bôas, who presented the report's findings. Joining the discussion were Taís Gasparian, expert on press defense and founder of the Tornavoz institute, and journalist Allan de Abreu, from Piauí magazine.

"These lawsuits, without any surprise, are fated to a successful failure. It is a failure because the vast majority are judged groundless or dismissed without merit. But it is successful because such actions do not depend on a positive outcome. The attack on the press has already been launched," said researcher Bianca Villas Bôas.

Taís Gasparian, who coined the term "judicial harassment" over 15 years ago, during the attacks on journalist Elvira Lobato by pastors of the Universal Church of the Kingdom of God (Igreja Universal do Reino de Deus), explained that judicial harassment is the "abuse of the right to legal action" in the Judiciary. "The most perverse part is that many use the Small Claims Civil Court (JEC)," she remarked, highlighting that the JEC serves to facilitate access to justice for economically disadvantaged individuals, but in cases of judicial harassment, this mechanism is perverted: "In harassment cases, the plaintiff is not the economically disadvantaged party. On the contrary, it is the defendant [the journalist] who is economically disadvantaged."

Taís Gasparian explained that, in an attempt to combat judicial harassment through the JECs, Abraji filed a Direct Action of Unconstitutionality (ADI) in the Federal Supreme Court (STF) to consolidate serial lawsuits against journalists in the defendant's domicile. The attorney represents Abraji in the action filed with the STF, which is still under judgment but has already received an unfavorable vote from Justice Rosa Weber.

Defending journalist Elvira Lobato, Taís Gasparian recounted that the reporter, then working for Folha de S. Paulo, won all the lawsuits filed by members of the church in various states of the country. But this tied up the lawyer's and Elvira's schedules for two years, as they had to travel throughout Brazil to attend hearings.

Journalist Allan de Abreu is one of the cases of judicial harassment and, recently, conducted an in-depth report on journalists victimized by this type of harassment. He gave a statement on the impact of this aggression on the lives of press professionals and welcomed the creation of the Monitor. "I think it's a milestone in Brazilian journalism. Because, for the first time, harassment has been systematized, there is a scientific method to monitor this harassment. And we hope that the Judiciary is aware of journalistic practices and that this marks the beginning of a public debate that reaches the appropriate levels."

Mobilized Powers

From 2008 to March 2024, the Monitor gathered a total of 654 lawsuits categorized as judicial harassment against journalists, distributed in 84 cases of judicial harassment. Of the total, 57.4% stemmed from the mobilization of associative power, 19.8% from political power, 13.7% from economic power, and 8.1% from legal power.

Types of Harassment

There are four types of harassment that can be employed as a means of intimidating the press: (i) lawsuits that have the same journalist as the victim of coordinated cases, (ii) lawsuits filed by the same contentious author, (iii) lawsuits with outrageous claims, or (iv) lawsuits that use the criminal system. From the data analysis, the most frequent type of harassment (450) was that of lawsuits with the same journalist as the victim of coordinated cases.

Most Recurrent Litigants Against Journalists

The most prolific author of the attacks was the businessman Luciano Hang (53), followed by Guilherme Henrique Branco de Oliveira (47), Associação Nacional Movimento Pró Armas [Pro-Guns Movement National Association] (17), Daniel Valente Dantas (15), Julia Pedroso Zanatta (12), Médicos Pela Vida [Doctors for Life] (12), Kim Patroca Kataguiri (8), and Orlando Morando Jr (8).

Nature of Target Publications

Regarding the predominant nature of the publication (report or opinion), it is noteworthy that many cases (49%) of harassment happened under the pretext of predominantly informative matters, which report or investigate facts related to people of public interest. The division between facts and opinions – which should be relevant to the assignment of responsibilities in lawsuits involving defamation – seems to have no significant impact in Brazil: Even predominantly factual reports expose journalists who publish them to relevant legal risks.

Payment of compensation

The most common request on a claim against a journalist or journalistic outlet was the payment of compensation. This occurred in 62 cases (which may or may not have been dismissed in higher courts). The number shows that, even in the case of the most common remedy, the number of deferrals is low, which suggests that harassment is consumed more by procedural importance than by the seriousness of the legal consequences it brings.

Outcome of Actions

The Monitor identified that the fate of most harassment lawsuits is a failure since most cases result as dismissal without prejudice and groundless in all instances This reinforces that the practice of harassment is indifferent to the outcome of the process. As internationally understood in the case of SLAPPs (Strategic Lawsuit Against Public Participation), the aim of these lawsuits is not to grant a court order but the burden that the mere fact of being prosecuted will bring to the journalist - procedural costs invested in defense, time and energy not directed to the professional exercise of journalistic activity, damage to reputation, and psychological suffering.

Abraji's Recommendations

→ The taxonomy of the lawsuits adopted by the National Council of Justice (CNJ) is adjusted to ease the identification of cases that discuss freedom of the press, putting into practice a unified mechanism of procedural consultation that is accessible to the general public;

→ The Judiciary adopts the possibility of bringing cases together in a single court and at the defendant’s home when dealing with a series of disputes against the same target, following the arguments presented in the Direct Action for the Declaration of Unconstitutionality (ADI) 7055; 

→ The Brazilian State ensures that the members of the Judiciary are aware of the freedom of the press, so that their decisions are under the jurisprudence and international human rights standards, recognizing judicial harassment against journalists as a threat to democratic freedoms. 

→ There is a standardization of the parameters adopted by the jurisprudence about freedom of expression in the country to avoid legal uncertainty in cases of judicial harassment against journalists, ensuring the effectiveness of constitutional rights and international human rights standards.

The project received support from the UNESCO* Global Media Defence Fund and received collaboration from various civil society organizations such as Tornavoz, Ajor, FMMSA, RSF, Instituto Palavra Aberta, Jeduca, Intervozes, and Instituto Vladimir Herzog. To watch the discussion on the report's launch, click here.

* The designations employed and the presentation of material throughout this document do not imply the expression of any opinion on the part of UNESCO concerning the legal status of any country, territory, city, or area or its authorities or concerning the delimitation of its frontiers or boundaries. ABRAJI is responsible for the choice and the presentation of the facts on this website and for the opinions expressed therein, which are not necessarily those of UNESCO and do not commit the Organization.