Can a media outlet be held liable for an interviewee’s statement?

In 1995, a print newspaper published an interview with a lawyer who accused a political activist of having carried out a terrorist attack back in 1966. The activist filed a lawsuit against the news company seeking indemnification for moral damages. 

The lower court ruled in favor of the offended party, but the decision was overturned by a state Court of Appeal, which stated that the news outlet had merely reproduced the interviewee’s words and had not made any accusations or even comments about the activist.

The offended party appealed, and the Superior Court (“STJ”) overruled the Court of Appeals’ decision. By a majority vote, the judges ruled that journalists must not neglect their commitment to the truthfulness of the facts nor recklessly publish information that may harm the moral integrity of third parties. Thus, the newspaper should have provided disclaimers where necessary in a way to protect the activist’s honor, offering him, at least, the opportunity to reply to the interviewee’s accusations.

The case was brought to the Supreme Court of Brazil (“STF”), which, through a majority vote upheld the decisions of both the lower court and the Superior Court of Justice (STJ). The case activated the General Repercussion Rule (“Tese de Repercussão Geral”) mechanism, through which the STF sets guidelines for lower courts on selected matters. In this instance, the question at hand is whether media outlets should be held liable for statements made by third parties.

According to the thesis established by the STF (“Tema 995”): 

1. Full protection of the constitutional principle of freedom of the press lies on the combination between freedom and responsibility, where any form of prior censorship is prohibited. An ex-post assessment of the wrongdoing and respective accountability is admitted in cases of injurious, defamatory, slanderous, or false information. In such events, the offended party may seek indemnification for material and moral damages, as well as request the removal of the content. The constitutional principle of human dignity, which entails the rights to honor, privacy, private life, and image, protects individuals against unlawful external interference.
2. The news outlet shall only be held liable if it publishes an interview in which an interviewee falsely attributes a crime to a third party, and (i) there is evidence of the falsehood of the information at the time of the disclosure, or (ii) there has been a breach of duty of care in which the outlet has failed to verify the truthfulness and accuracy of the facts contained in the report.

Although a General Repercussion Rule has been issued on the matter, it is also important to assess the decision issued by the Supreme Court, which is yet to be officially published.  Understanding the nuances of this leading case and the rationale underpinning the judge’s votes is imperative to fully grasp the freedom of the press and its limitations. Furthermore, it is noteworthy that this decision will impact not only print newspapers, but also news programs and documentaries.