Last week, the Brazilian Supreme Court ruled that media companies can be prosecuted for libel if they air or publish interviews in which the interviewee falsely accuses someone of a crime, a decision that several newspaper associations and free speech advocates see as a threat to the very functioning of the press.
Critics of the Supreme Court see the move as yet another step in a steady process through which the Judiciary increases its controls over freedom of speech, which has included censoring news stories and arm-wrestling Big Tech over content moderation.
The decision was motivated by a lawsuit first filed by the late Congressman Ricardo Zarattini (1935-2017) in the 1990s. Back in 1995, the newspaper Diário de Pernambuco published an interview with the late police officer and Councilman Wandekolk Wanderley, in which he accused Mr. Zarattini of being responsible for a bomb attack at the Recife airport in 1966, during Brazil’s military dictatorship (1964-1985). The attack killed two people.
Ricardo Zarattini was a member of Communist organizations, including the National Liberation Action (ALN), a Marxist-Leninist urban guerrilla group. Arrested and tortured by Brazil’s military, he would later become one of the 15 people released by the regime in exchange for left-wing guerrillas releasing U.S. Ambassador Charles Elbrick, who was kidnapped in 1969.
Despite his guerrilla activities, Mr. Zarattini was innocent of the airport attack and sued the newspaper for publishing the interview. At the time, there were already indications that the accusation was false. He was not formally charged for the attack, and witnesses had exonerated him of any participation in the bombing.
An investigation by a 2013 truth commission (which investigated crimes committed by the state during the 1964-1985 military dictatorship) would find official documents proving his innocence.
The petition for the newspaper to pay compensation to Mr. Zarattini was accepted by a trial court judge in 1997 but overruled by a higher court, which understood that the paper merely reproduced what Mr. Wanderley said — without weighing whether the accusation was true. Court documents also show that Mr. Zarattini did not accept an offer by Diário de Pernambuco to tell his version of the facts — and sued exclusively the paper, not his accuser. For one of the judges who overturned the first verdict, that move indicated that the plaintiff only wanted money.
The case reached the Superior Court of Justice, Brazil’s second-highest court, in 2011 and the Supreme Court in 2017, one month before Mr. Zarattini died at 82.
Supreme Court Justice Edson Fachin, the case’s rapporteur, ruled that the Constitution prohibits the act of banning speech before publication — but added that freedom of the press and the right to information are not absolute, which makes...
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