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Brazil: PEN joint submission to the UN Universal Periodic Review

Thursday 6 April 2017 - 1:00am

In the run up to the review of Brazil’s human rights record at the UN Universal Periodic Review (UPR) in May, PEN International, PEN Canada and the International Human Rights Program at the University of Toronto Faculty of Law submitted a joint report on the situation of freedom of expression in the country.

“Ahead of Brazil’s UPR, PEN and our partners are gravely concerned at persistent violence against journalists, carried out with almost complete impunity, and urge the authorities to create an enabling environment for journalism and freedom of expression in the country.

While Brazil has been an outstanding champion of digital freedom and the right to privacy at the UN, we’re also increasingly worried about the growing attack on digital freedom in the country and call on Brazil to continue to champion these rights at home and abroad." 

– Carles Torner, Executive Director, PEN International

Major concerns
Fatal violence against journalists, writers and bloggers has remained a constant in the period under review. According to PEN International’s research, 14 journalists and bloggers were killed between January 2012 and August 2016. PEN International also recorded 49 non-fatal attacks in Brazil.

In the 2012 UPR, Brazil accepted the recommendation to ‘take all necessary measures to ensure the physical integrity of journalists and human rights defenders’. Brazil also implemented the National Programme for the Protection of Human Rights Defenders (PPDDH), which includes journalists. PEN is concerned that the PPDDH lacks the regulatory framework, technical capacity or financial resources to adequately protect at-risk individuals.

In the 2012 UPR, Brazil accepted a general recommendation on combating impunity. However, the Brazilian justice system is still characterised by high levels of impunity, and murder cases of journalists are often left unsolved. According to PEN International’s research, of the 25 print and internet journalists and bloggers killed between January 2004 and August 2016, 21 cases (84%) remain unpunished, with none of the perpetrators having been convicted.
On 22 April 2016, the Inter-American Commission on Human Rights (IACHR) referred the case of journalist Vladimir Herzog and others to the Inter-American Court of Human Rights (Case 12.879) after Brazil failed to comply with the IACHR’s recommendation to investigate and prosecute Herzog’s arbitrary detention, torture and killing by state agents at an army facility on 25 October 1975.

Welcome developments
PEN and IHRP welcome Brazil’s support for international initiatives in relation to digital freedom made since the 2012 UPR, in line with the recommendation it accepted to ‘consider freedom of expression concerns when drafting cybercrime legislation.’ In 2013, Brazil co-sponsored a draft UN resolution on the ‘right to privacy in the digital age’, which created international dialogue on privacy in the context of national and extraterritorial surveillance and mass collection of personal data. Moreover, Brazil passed the Marco Civil da Internet (‘Civil Rights Framework for the Internet’) into law. The Marco Civil is a ground-breaking piece of legislation that safeguards user privacy and protects freedom of online expression. Nevertheless, PEN and IHRP also note with concern multiple legislative attempts to curb digital rights in Brazil since the Marco Civil was passed.

Lastly, the coalition noted that defamation is still criminalized under the Brazilian Penal Code and can be prosecuted as ‘defamation’, ‘calumny’, or ‘injury offending the dignity of another person’ , punishable by a prison sentence and/or a fine. Moreover, judicial censorship of authors, journalists, media outlets, bloggers, and internet companies has become a significant barrier to freedom of expression in Brazil.

A judge ordered two of Brazil's biggest national dailies, Folha de S.Paulo and O Globo, to remove stories from their websites about a court case of a hacker convicted of attempted blackmail of Brazil's first lady, Marcela Temer, according to reports in both papers. The Intracept’s Glenn Geenwald commented: "We regard judicial orders directing newspapers to delete their news reporting, obtained by a political official, to be as grave a threat to press freedom as can be envisioned, and we would fight it to the fullest extent possible."

The coalition makes the following recommendations to the Brazilian government:

1. Violence Against Journalists, Bloggers and Writers:
Prevent violence against journalists, bloggers and writers, including killings, physical assaults, harassment, threats and intimidation, by:
• publicly condemning such attacks at all levels of the state;
• ensuring that public demonstrations are policed in such a way that allows this group to carry out their work freely;
• providing journalists, bloggers and writers at risk with effective protection.

2. Protection Mechanisms for Journalists and Human Rights Defenders:
Strengthen the National Programme for the Protection of Human Rights (PPDDH) country-wide by:
• establishing a legal and regulatory framework for the PPDDH;
• expanding the PPDDH to explicitly include journalists and ensuring wide dissemination among this group;
• ensuring adequate and sustainable funding and technical capacity for the PPDDH, particularly at state level;
• fostering improved coordination between the federal and state governments in implementing the PPDDH.

3. Impunity for Violence against Journalists, Bloggers and Writers:
Combat impunity for violence against this group by:
• passing legislation to ensure that crimes against this group and freedom of expression are ‘federalised’, so that they are investigated by federal police officials and prosecutors;
• ensuring that prompt, thorough and impartial investigations are carried out into all attacks on this group that take full account of their writing and/ or profession as a possible motive, prioritising those cases where the involvement of state or law enforcement officials is alleged;
• ensuring that all police officials and prosecutors responsible for investigating crimes against this group receive adequate training in order to do so, for example in human rights;
• ensuring that victims and their families have access to appropriate remedies;
• considering establishing an Observatory on Violence Against Journalists to record attacks and track the formal resolution status of these cases, led by the Ministry of Justice in conjunction with UN bodies.

4. Digital Freedom:
Ensure that Brazilians can seek and share information and express themselves online freely by:
• repealing the mandatory data retention requirements under the Marco Civil;
• ensuring that the digital rights and freedoms enshrined in the Marco Civil are upheld and appropriately interpreted by the judiciary, and are not undermined by newer, more restrictive legislation.

5. Judicial Censorship:
Combat the phenomenon of judicial censorship by:
• decriminalizing defamation and making it a civil offence;
• ensuring effective implementation of the July 2015 Supreme Court ruling that it is unconstitutional to require biographers to obtain prior authorization from the subject of their biographies or their families;
• limiting the use of court gag orders to bar the publication of content on matters of public interest, in particular when take-down requests directly benefit judges, local officials and law enforcement agents;
• amending the elections law to allow for free reporting on political content during the election period, and removing criminal sanctions.

6. Freedom of Information:
• improve compliance with the 2011 Access to Information Law, in particular at municipal level;
• ensure that the federal oversight system for compliance with the law and more generally the fight against corruption is not weakened by the closure of the Comptroller General of the Union (CGU) and its replacement by the new Ministry of Transparency, Oversight and Control.

To view the submission click here.

For further information, please contact Sarah Clarke at PEN International, Koops Mill, 162-164 Abbey Street, London, SE1 2AN. Tel: +44 (0) 2074050338, Fax: +44(0) 2074050339. Email: