Brazil Court Maintains One Year Sentence Against Professor for Defamation

    Brazilian professor Emir Sader

    Brazilian professor Emir Sader Brazilian Professor Emir Sader was sentenced in October 2006 to one year in prison for an Article published online in May 2005, in which he accuses Santa Catarina state's Senator Jorge Bornhausen (from the PFL party renamed to Democratas) of being elitist, bourgeois, fascist and racist. Sader was also dismissed from his position as a professor with the Federal University of Rio de Janeiro.

    Since then Bornhausen, who for a time was the president of his party, has left the senate after finishing his eight-year old mandate.

    Commenting on the story, Agnes Callamard, executive director of Article 19, a London-based human rights organization, condemned Sader's conviction.

    "Article 19," Callamard said, "urges the São Paulo Court to abide by Brazil's international obligations in the area of freedom of expression and acquit Professor Sader. Criminal defamation is an unjustifiable limitation on freedom of expression, particularly when it results in excessive and disproportional sanctions as in the case of Professor Sader."

    During a seminar with entrepreneurs in August 2005, Senator Bornhausen was asked if he was unhappy with the political crisis then faced by the country, to which he replied that, on the contrary, he was happy because "we would be free from this race for the next 30 years", referring, as he later confirmed, to politicians from the Worker's Party (President Lula's party).

    In response to this statement, Professor Sader published an article on the website of the news agency Carta Maior (where he is a columnist) in which he accused Senator Bornhausen in the terms above mentioned.

    Reacting against the article, Bornhausen filed a criminal defamation lawsuit against the professor, based on the defamation provisions of the 1967 Press Law.

    After reviewing the case the judge sentenced Professor Sader to the maximum sanction foreseen for defamation in the Press Law and, in addition, held that Mr. Sader had taken advantage of his position as a well-known university professor and had abused his position as civil servant.

    As a consequence, the judge also sentenced Professor Sader to dismissal from his position as a professor with the Federal University of Rio de Janeiro. The prison sentence was converted (due to compulsory legal provisions) to community service for 8 hours a week for the same period.

    The judge stressed that the plaintiff's prominent position as a Senator should be taken into consideration when analyzing the case, increasing the "wrongdoing" caused by the published offenses.

    The São Paulo Court has reviewed and dismissed on June 15 the appeals in the case. Both plaintiff and defendant, as well as the Public Prosecutor's Office, have questioned the judge's decision.

    Article 19 considers criminal defamation to constitute an unjustifiable limitation on freedom of expression. This position is shared by the OAS Special Rapporteur on Freedom of Expression, who has stated that "criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws."

    Article 19 also disagrees with the judge's arguments concerning the application of greater protection to the reputation of public officials such as elected senators. International human rights courts have consistently held that public officials should tolerate more, not less, criticism than ordinary citizens. The Inter-American Court of Human Rights, for example, stated that:

    "It is logical and appropriate that statements concerning public officials and other Individuals who exercise functions of a public nature should be accorded, in the terms of article 13(2) of the Convention, a certain latitude in the broad debate on matters of public interest that is essential for the functioning of a truly democratic system . . .

    "A different threshold of protection should be applied, which is not based on the nature of the subject, but on the characteristic of public interest inherent in the activities or acts of a specific individual.

    "Those individuals who have an influence on matters of public interest have laid themselves open voluntarily to a more intense public scrutiny and, consequently, in this domain, they are subject to a higher risk of being criticized, because their activities go beyond the private sphere and belong to the realm of public debate."

    Article 19 is an independent human rights organization that works globally to protect and promote the right to freedom of expression. It takes its name from Article 19 of the Universal Declaration of Human Rights, which guarantees free speech.

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    • Show Comments (14)

    • brazil um paIs de todos

      PLENTY OF WEBSITES MY ASSSSSSSSSSSSSSSSS SAY STH WRONG AND YOULL GET SUED AS SADER, YOU DONKEY!!!

    • brazil um paIs de todos

      JOAO HOPE YOU ARE ABLE TO DO A COMPREEHENSION CLASS BEFORE YOU START READING ALL THIS **BRIGHT*** BLOGS . MAYBE YOU SHOULD START IT AGAIN START WITH KINDERGARTEN, YOURE PRONE TO HAVE SUCCESS THIS TIME! AND QUITE WATCHING ESCOLINHA DO PROFESSOR RAIMUNDO.

    • brazil um pais de todos

      JOAO DA SILVA IS ONE OF THE IDIOT BRAZILIANS THAT ABOUNDS IN BRAZIL!!!!! SO MUCH RETARDS ELITISTS FACISTS CORRUPTERS MAKE THIS COUNTRY WHAT IT IS: A TROPICAL MUD!!!!!

      JOAO YOU PAQUIDERME GO SINK IN THE OCEAM MAYBE THIS WAY BRAZIL CAN BE A “””””PAIS PARA TODOS”””””” LULA”S SLOGAN HAHAHAHA

    • João da Silva

      To:Simpleton
      [quote]The scholar appears to have spoken inappropriately but only by the choice of conveyance[/quote]

      What an appropriate word to use in this instance: Scholar Vs Senator! Will make a terrific plot for a movie.

      What is going to happen in your opinion? The scholar is going to lose his job,becomes a hero and hired by the government OR he is going to lose his job and go into oblivion?

    • João da Silva

      To:Igor
      [quote]The 1967 Press Law appears to run counter to Brazil’s Constitution, which guarantees freedom of expression and prohibits censorship.[/quote]

      I think that I mentioned before that it is not in the interest of any political parties to regulate the laws according to the New Constitution ratified in 1988.It does serve their purposes to keep the journalists under fear.

      [quote]It is no wonder you never hear of any follow up of Hurricane, Checkmate, Razor, the press is AFRAID. Why is the illegal unconstitutional law still prosecuted to the apparent obliviousness of all in Brazil. It is this single cancer that is killing Brazil, it castrates the press.[/quote]

      Most of our media like sensational journalism and the journalists think that they have done their jobs after reporting the arrests of some prominent citizens and they are not interested in the follow up investigative work.The investigative journalism is new to our country and I think that it will take a few years for the young reporters to realize how important it is in a democratic society. We do have some bright ones.The Internet journalism is becoming a big thing here and providing an alternative source of information.You might be surprised to know that the case of Professor vs Senator was not published in any news media here and I came to know through Brazzil.com.I am sure that plenty of people who read this on line newspaper, would be as surprised as I am.I dont think that the politicians will be able to stop us from accessing information from within and outside our country, because of this new medium.

      BTW, do you understand written Portuguese? If so, you will find plenty of web sites where the journalists as well as the readers are not afraid to express their opinion.

    • Simpleton

      Shamed man or Shaman
      This will all work out okay. The scholar appears to have spoken inappropriately but only by the choice of conveyance. Good thing he didn’t use the M word, then he would be in prison for life right? Anyway, a seed has been planted (to fix the judiciary / change their teeth), the chaff on either side will soon be forgotten.

    • igor

      Joao
      The 1967 Press Law appears to run counter to Brazil’s Constitution, which guarantees freedom of expression and prohibits censorship. The Press Law of ’67, an archaic remnant of a military dictatorship, defines alleged violations in broad terms such as: reporting deemed offensive to public morals; reporting that a plaintiff finds damaging to his rep**ation or offensive to his dignity; reporting that is considered subversive to public and political order; and reporting of “true” facts that are considered distorted or provocative.

      It is no wonder you never hear of any follow up of Hurricane, Checkmate, Razor, the press is AFRAID. Why is the illegal unconstitutional law still prosecuted to the apparent obliviousness of all in Brazil. It is this single cancer that is killing Brazil, it castrates the press.

    • João da Silva

      TO:Igor
      Igor, as usual, your post was informative and interesting and thank you very much for it.I am very much aware of the importance and highly in favor of Freedom of Press all over the world including in Brazil. I have a favorite saying: Dont complain to your neighbors or friends. Complain to the Politicians or write to the local newspaper.I dont know if you have been keeping track of Brazilian history after the Miltary government handed over the power in 1985. The new government lead by PMDB (also current partners of PT in the congress) decided to write a new constitution, instead of amending the existing one. They haggled over many issues and finally in 1988, it was approved.Though many laws were written, most of them were not regulated (we call it “regulamentado”). You certainly know that the news papers are very expensive for poor people to read and the sources of newws are TV and Radio. After 1985 the concessions to set up a TV networks and Radio stations were distributed to the political parties and many journalists were (and still are) unwilling to critize the government or the politicians for fear of losing their livelyhood.Of course it was not in the interests of the parties to implement the new law on freedom of press for many obvious reasons.

      Now coming to the case of the Professor vs Senator: I recall the incident when the Sen.Bornhausen made the statement “that these scandals would ensure that people would not elect this “Race” (Of PT-Labor party) for next 30 years. In Portuguese, it does not refer to any race,but to “kinds”. Senator.Bornhausen,as far as I know is a fierce opponent of the leftists (and the current government) and very consistant with his views about them.No doubt that he comes from a well heeled and traditonally political family. He is educated and articulate.Though he was appointed by the Military governments for various posts he held, he was good enough to recognize talented people (regardless of their ethnic back ground) to run the show.He believes in “Orderly Progress” and the pace and style with which our lefties are moving are irritating him. BTW,to put the record straight, I was not benefited personally by him or for that matter any other parties.

      As for Prof.Sader, yesterday was the first time I came to know about him and the case against him. Of course, he was free to call the Senator any names he wanted,but Senator was free to sue him through LEGAL means. Probably the judge interpreted the laws according the ones in 1967 (since the new ones were not regulated) and came out with the sentence.Bornhausen is a “Bogeyman” for the lefties and Sader being a Federal employee should have been careful before joining the bandwagon and the chorus. Lots of people here are quite concerned about the partisan politics creeping into the Federal (and the state) universities and the effect they have on our kids.I dont particularely like the way the University Rectors and the Directors elected based on parties and Sader was probably wanting to stand for the election on the platform of the ruling party.It is also amazing that his party left him hanging dry and high.

      Coming back to my earlier comments: I retrieve the comment I made that he should have been sentenced to life time imprisonment! The sentence was harsh,because the judge ordered his dismissal from the university.But, I am sure Prof.Sader will survive this ordeal.

    • CH.C.

      what iks best ? Defamation or corruption ?
      NOT ONE SINGLE BRAZILIAN POLITICIAN HAS EVER GONE IN JAIL FOR CORRUPTION…….DESPITE THE BRAZILIAN LAWS AND CONSTITUTION !

      DOES THAT MEAN THAT YOUR FAMOUS (IN)JUSTICE DEPT IS TELLING THE WORLD THERE IS NO CORRUPTION IN BRAZIL…OR THAT
      CORRUPTION IS EVEN BLESSED BY THEM ??????

    • igor

      Joao
      Sader is entitled to his opinion as apparently as wrong and ill informed as it is. But it is a civil matter under the constitution of ’88 and the criminalizing of either libel or slander or defimation is unconstitutional.

      The Press Law of 1967 is an impediment to the evolution of Brazil. It prevents a free press, a powerful Fourth Estate.

      If the recountiing is libalous there is civil recourse. The issue is malace. Why does Sader maligne Bornhausen? He certainly had an academic reason for his comments. Write or wrong he is entitled under the Constitution to express his ignorance.

      If you can please explain why this professor is to be construed as malicious, as malice under the law. Do you know the context and reason for what he said?

      Will Rodgers, once said,’ I may not agree with what you say but I will defend your right to say it until death’

    • igor

      1967 Press Law
      [url]http://www.cpj.org/news/2005/Brazil15nov05na.html[/url]
      In addition to large civil penalties, the press law prescribes prison terms ranging from six months to three years, plus fines. Brazil’s penal code also contains several provisions that treat defamation as a crime, setting prison penalties of six months to two years.
      In one encouraging sign, Edson Vidigal, president of the Superior Tribunal of Justice, Brazil’s second-highest court, said in several widely covered speeches and interviews this year that the press law was “implicitly revoked by the 1988 Constitution.” Vidigal, himself a former journalist, has said that journalists’ ability to cover the news is severely restricted as long as the press law remains in effect.

      The 1967 press law appears to run counter to Brazil’s Constitution, which guarantees freedom of expression and prohibits censorship. The press law, an archaic remnant of a military dictatorship, defines alleged violations in broad terms such as: reporting deemed offensive to public morals; reporting that a plaintiff finds damaging to his reputation or offensive to his dignity; reporting that is considered subversive to public and political order; and reporting of “true” facts that are considered distorted or provocative.

      Criminal and civil defamation lawsuits against the Brazilian media have numbered in the thousands over the last five years, according to news reports. Businessmen, politicians, and public officials file multiple lawsuits against news outlets and journalists as a way to pressure them, strain their financial resources, and force them to halt their criticisms.
      Plaintiffs seek disproportionately high amounts of money for “moral and material damages,” a practice has become so common it’s known as the “industry of compensation,” according to CPJ research. The lawsuits are filed in a politicized climate in which lower court judges routinely interpret Brazilian law in ways that restrict press freedom, CPJ’s analysis found.

    • igor

      1967 Press Law. anachronistic 1967 press law that was adopted under a military dictatorship but is of dubious constitutionality today. CPJ urged the Brazilian federal government to file a petition wit
      The First Amendment to the Constitution of the United States gives strong protection to freedom of expression, which arose from the tradition of dissent in the American Revolution. For most of the history of the United States, constitutional protections of freedom of speech had no impact on the traditional common law of defamation inherited from the English legal system. This changed with the landmark 1964 case of New York Times v. Sullivan, in which the Supreme Court of the United States announced constitutional restrictions to state defamation law. The court held that where a public official was defamed, the plaintiff had to prove not just that an untruthful statement was made, but also that it was made with “actual malice” – that is, with knowledge of falsity or with reckless disregard for the truth. The “actual malice” standard was subsequently extended to public figures in general, and even to private figure plaintiffs seeking punitive or presumptive damages.

    • João da Silva

      [quote]Jorge Bornhausen is far from a racist and color blind[/quote]

      What I wanted to say was Jorge is totally color blind,not a racist nor a fascist. A great patriot who always fought for the good of the state where he was elected from.It is a pity that he did not want to stand for the elections again.

    • João da Silva

      [quote]Santa Catarina state’s Senator Jorge Bornhausen (from the PFL party renamed to Democratas) of being elitist, bourgeois, fascist and racist. Sader was also dismissed from his position as a professor with the Federal University of Rio de Janeiro.
      [/quote]

      To call Jorge Bonhasusen all sort of names like this? Prof.Sader deserves this sentence. It is a pity that the Judge didnt sentence him to life time imprisonment.

      Jorge Bornhausen is far from a racist and color blind. He knows what “Brain Power” is.Him a fascist?. Forget it. A great guy and I like him.

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