Politician’s right to privacy vs. freedom of the press: a constitutional tug of war

In September 2023, the Supreme Court of Brazil (“STF”) issued one more decision regarding the balance between freedom of speech and press, and individual rights.

A journalist who took pictures of a Senator’s smartphone screen containing private messages and shared them on social media had his credentials revoked by the president of a Joint Parliamentary Committee of Inquiry and was banned from attending its sessions.

The President of the Committee claimed that the journalist had violated the constitutional right of secrecy of communications and the Brazilian Data Privacy Law (“LGPD”), among other laws.

In response, the journalist filed a Writ of Mandamus requesting a preliminary injunction to reinstate his credentials. He argued that this represented a violation of the right to freedom of speech, press and the full exercise of a profession, asserting that the LGPD does not apply to journalistic and artistic activities (Article 4, II, a).

The Court found that while it seems that the journalist did violate the confidentiality of internet communications – which is protected by the Brazilian Federal Constitution and the Brazilian Civil Rights Framework for the Internet -, the coercive action taken by the referred Committee’s President was considered disproportionate to the conduct of the journalist, who should be able to fully exercise his profession and his right to inform.

The STF’s decision alluded to previous case law in which it stated that in cases involving a conflict between the freedom of speech and the fundamental rights to intimacy and privacy, the Court tends to favor the former. It also stated, in accordance with case law, that the appropriate remedy for abuses of freedom of speech is not to suppress journalistic content through an injunction, but to uphold the right of reply and apply the relevant indemnifications.

Despite the decision, the right to fully exercise his profession as a journalist does not exempt him from being held accountable for the action in question in the criminal, civil, and/or administrative sphere.

It is worth noting that the case involved the privacy of a public person, which in accordance with doctrine and case law, is narrower than the right to privacy of ordinary people.

Interestingly, the Court did not mention the LGPD in its preliminary decision.