A is a fundamental right guaranteed in article 5 of the . Its goal is to ensure that everyone can express opinions and ideas without retaliation.
The Magna Carta protects freedom of expression of thought, prohibiting anonymity. Furthermore, it determines that “the expression of intellectual, artistic, scientific and communication activity is free, regardless of censorship or license”.
The topic is also considered in light of the 1948 Universal Declaration of Human Rights.
Article 19 of the document determines that “every human being has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and transmit information and ideas through any means and regardless of borders” .
The law, however, has limits when it comes up against crimes established by legislation. Some examples in Brazil are cases of racism, bullying, crimes against honor and attacks on democracy, according to Pierpaolo Cruz Bottini, lawyer and professor at the USP Law School.
There are also gray areas that can reach judges in specific situations. The debate becomes more complex due to the range of cases, which can range from judicial harassment to hate speech.
The issue moves the public arena with each decision involving well-known cases, such as that of journalist Breno Altman, paying compensation for posts about the war between Israel and Hamas.
Another example is the determination of the minister of the (Supreme Federal Court) Flávio Dino with homophobic passages.
For Paulo Henrique Cassimiro, professor of political science at Uerj (State University of Rio de Janeiro), it is important to understand that reflection on the topic is not merely legal.
“The dispute over what is freedom and what is violence against freedom is fundamentally political. A group that considered itself censored will argue that it is defending a position of freedom, while the group that defended censorship will consider that it is defending the dignity of those who were offended”, he states.
He adds that the topic is a fruitful space for the reproduction of polarized political logics.
Experts linked to freedom of expression also argue that Brazil still lacks a more solid debate to guarantee the right. They cite the , which is being judged by the Supreme Court with general repercussions, as an opportunity to define these parameters.
See some recent cases that mobilized public opinion regarding the limits of freedom of expression.
Journalist sentenced for posts about Israel
Journalist Breno Altman was sentenced at the end of October to pay compensation of R$20,000 for posts about the war between Israel and Hamas considered by the courts to be racist against Jews.
Altman, who is Jewish, says his stance is not anti-Semitic, but against Israel’s genocide in Gaza.
In sentencing, the judge interpreted that there was racism in 5 of 20 posts that appeared in the civil action by Conib (Israeli Confederation of Brazil) because of phrases such as “it doesn’t matter what color the cats are, as long as they hunt mice” and the characterization of Jews Zionists as “petty-bourgeois rotten by racist doctrine, fearful, racist, etc”, in the judge’s interpretation.
In the criminal field, when posting using the word “rats”.
For Raísa Cetra, executive director of the organization Artigo 19, Altman’s conviction illustrates the “classic case” of restrictions on journalists, the category most attacked when it comes to judicial harassment.
According to Pierpaolo Cruz Bottini, lawyer and professor at the USP Law School, the case exemplifies “this tenuous division between freedom of expression and insult to honor or incitement to hatred”.
Minister Flávio Dino (STF) ordered at the end of October the removal of legal books with homophobic and misogynistic texts.
The works contained excerpts that said, for example, that AIDS “only exists through the unhealthy practice of homosexuality.” The judge understood that the specific case, of hate speech, was not protected by freedom of expression.
He allowed the legal works to be offered again to the public on the condition that the sections incompatible with the Constitution were removed and determined compensation of R$150,000 for collective moral damages.
The material was challenged by the Public Ministry after students from UEL (State University of Londrina), in Paraná, found it in the institution’s library. The withdrawal request covered five books from Editora Conceito Editorial Ltda, but Dino understood that one of them was not subject to the restriction.
The Public Prosecutor’s Office also asked for the books to be destroyed. The case reached the STF through appeal. In 2016, the action had been denied by the Federal Regional Court of the 4th Region, which understood that the works did not have the potential to spread hatred.
For Charlene Nagae, lawyer and co-founder of Instituto Tornavoz, an association that offers legal defense in cases involving freedom of expression, it was not clear whether the minister’s decision accepted, for example, the request to destroy the books. She says that the works really seemed to incite discrimination, which is constitutionally prohibited, but that the decision to remove books from circulation is “always difficult”, including operationally.
Monark sentenced to prison for insulting Dino
In October, YouTuber Bruno Monteiro Aiub, known as , was arrested under an initial semi-open regime for insulting .
Compensation of R$50,000 was also determined. The conviction made reference to the influencer’s speeches about Lula’s then Minister of Justice, who was called a “damn authoritarian”, “fat” and “shit”.
Judge Maria Isabel do Prado, from the 5th Federal Court of São Paulo, interpreted that the YouTuber’s statements went beyond freedom of expression.
For Charlene Nagae and Raísa Cetra, the prison sentence is disproportionate. Nagae states that international human rights courts have been talking for years about the disproportionality of the existence of crimes against honor, which, in his opinion, need to be rethought in Brazil.
