Prelminary Notes on Veja, the Grey Lady, Sullivan and Gen. Castello Blanco

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Veja’s Mainardi on the Jô Soares show: “I made nothing up. I reported what I found.” Apparently true: Someone else made it up. Mainardi simply repeated it loudly. See Seen on “The Brazilian Letterman Show”: Diogo Mainardi on the Journalism of Buzz

.Justice WILLIAM J. BRENNAN JR., in his majority opinion, placed the legal issues [in New York Times v. Sullivan] in the context of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

In the years since New York Times v. Sullivan, some critics have argued that Black and Douglas were right. The “reckless disregard” requirement has allowed highly intrusive inquiries into the reportorial and editorial processes of the mass media. In addition, the “chilling effect” of libel suits has not been diminished because of the case. If a jury finds reckless disregard, it can award enormous damage awards against the press. Other critics of the decision believe it affords too much protection to the press. Public officials unfairly libeled by the press rarely file libel suits because of the difficulty of proving actual malice. This prevents them from establishing in a court of law the falsity of the statements at issue.

Brazilian political and economic commentators perform their analyses before the fact. Before they know that it actually happened, they have an explanation for it. They present opinion divorced from information. –Ricardo Kaufmann (See O Globo: “Chávez Won the Referendum Because He Manipulated the System!”)

I was just wondering what exactly was meant by reports here in Brazil that the federal police plan to recommend a charge of “slander”or “libel” against banker Daniel Dantas over an article published in Veja magazine in May 2006.

Reports are that Disney Rosseti of the federal police will recommend a charge against Dantas, based on the 1967 press law, but not against Veja.

See

On the Veja article, see

Veja made some very incoherent claims about the history and general of American libel doctrine — and democratic governance in general — in its response to criticisms made by the President of Brazil, on being told Veja had published a document purporting to show that he had an illegal Swiss bank account. See

Veja represents the debate embodied in New York Times v. Sullivan as settled doctrine, written in stone, like one of the Ten Commandments. It isn’t. It is one of those legal doctrines about which you tend to joke that it must be fair because both adverse parties hate it with a passion.

So I was just wondering: What is at stake here, legally, for Citizen Civita and his South African white knights from Naspers?

Veja tends to follow the J.J. Rendón doctrine of journalistic ethics: “If it is legal, it is ethical.”

It reads like a magazine that has simply dispensed with employing journalists and is being written directly by libel lawyers from the Donald Segretti School of Libel at USC, trying to see how much they can get away with.

The U.S. Library of Congress just happens to have a copy of the Brazilian Official Diary in which the 1967 Press Law was published (on my birthday, in fact).

It has been amended slightly, however, over the years.

IANAL, but I understand there is still fair amount of legal uncertainty owing to the legislation’s general incompatibilities in principle with Article 222 of the Constitution of 1988, which posits the principle of freedom of expression but leaves it to posterity to wrestle with the devil in the details.

That zone of uncertainty seems to be where “the journalism of buzz” makes its home.

And I read that a number of proposals for a new press law have been in the legislative pipeline for some time now. Could one of them now be slouching toward Bethlehem to be born?

Maybe that is why the Editora Abril is making such a spectacle out of adopting its “code of conduct” — an ostentatious display of a newfound capacity to provide industry best-practice adult supervision. See

Or maybe not. Maybe they really mean it. It will be interesting to see if anything visibly changes over there at the Abril bunker off the Marginal Pinheiros once employees have signed the pledge.

Under that 1967 law, it is (was? is?) a crime to

Article 16. Publish or divulge false news, or true facts that are truncated or distorted, that provoke

I. Disturbance of the public order or social alarm;

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II. Mistrust of the banking system, or an undermining of the credit of a financial institution or any firm, person, or organization.

III. Harm to the credit of the federal Union, a State, a Municipality, or the Federal District;

IV. A perceptible fluctuation in the price of merchandise and securities in the financial market.

The generalíssimos were anti-“pump and dump.”

Article 20. Slander someone, imputing to them falsely an act defined as a crime …

Penalty: from 6 months to three years and a fine of from 1 to 20 of the minimum salaries of the region;

1. The same penalty applies to those who, knowing the imputation to be false, reproduce the slanderous publication or broadcast.

Reporter Leandro Fortes says that Rosseti declined to apply, I guess it would be, Article 20, 1, to Veja, citing the (Constitutional, I gather) principle of freedom of expression.

2. Truth is admitted as a defense unless the offended party is absolved by a judgment not subject ot appeal of the crime imputed, unless it be [an official public act.]

3. Truth is not a defense against the President of the Republic, the President of the federal Seante, the President of the federal House, the justices of the Supreme Court, or foreign heads of state or government or their diplomatic representatives.

That is very rough translation.

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Âmbito Jurídico notes that this exception for senior government officials was still in force as of 2004.

Projeto de lei (PL 3754/04) apresentado pelo deputado Coronel Alves (PL-AP) permite a quem falar contra o presidente do Brasil ou chefe de governo estrangeiro provar que a afirmação é verdadeira. Atualmente, o Código Penal (Decreto-Lei 2848/40) prevê que a figura da “exceção da verdade” (possibilidade que tem o réu de provar a veracidade da afirmação) não pode ser utilizada quando o alvo da calúnia for o chefe da Nação. “Esse dispositivo mais parece uma norma feita para imperador, como se o presidente não estivesse submetido às mesmas leis das demais pessoas”, avalia o parlamentar.

Bill No. 3,754/2004, presented by Coronel Alves (PL-AP) permits someone who speaks against the president of Brazil or a foreign head of state to offer prove that the statement is true. Currently, the Penal Code (Decree-Law No. 2,848/1940) provides that the figure of [“truth as a defense”; the “truth exception”] cannot be used when the target of the slander is a national head of State or Government. “This provision sees more like a rule fit for an emperor, as if the president were not subject to the same rules as the rest of us,” the lawmaker says.

I am not aware of the current, or recent past, Brazilian government ever actually invoking these laws, but I am just starting to browse around in the topic.

Não será tolerada a propaganda de guerra, de processos de subversão da ordem política e social ou de preconceitos de raça ou classe. LDI, I, 1.

So what he have learned here? Nothing much.

Just clipping to file for future reference.

It’s Duff time.

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