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- Herausgeber: Matrioska Editora
- Kategorie: Fachliteratur
- Sprache: Englisch
Marking 25 years since Mattos Filho first began providing pro bono services, the third volume of Human Rights in Evidence reaffirms the firm's commitment to defending human rights and democratizing access to justice. As part of its efforts toward fulfilling the social role of legal practice, Mattos Filho has pioneered the practice of providing exemplary free legal assistance in Brazil. These services are directed both at people in socioeconomically vulnerable situations and non-profit organizations lacking the financial resources to pay for legal services. Mattos Filho also seeks to produce and disseminate technical information, preparing memoranda, legal opinions, and research with Brazilian and international partner organizations. Different areas of the firm contribute multidisciplinary perspectives of law, which is coordinated by the Mattos Filho 100% Pro Bono practice. A compilation of various legal analyses and studies, this book covers six key themes, including freedom of expression and access to information, the rights of immigrants and refugees, ethnic and racial rights, women's rights, criminal justice, and climate change and the environment. For Mattos Filho, making a positive social impact is not just a goal. It is one of the ways it continues to transform legal challenges into opportunities.
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Human Rights in Evidence – Volume 3
© 2024 Mattos Filho
First Edition – 2024
All rights reserved and protected by Law No. 9,610/1998 (Brazil).
No part of this book may be reproduced or transmitted whether electronically, via photographs, recordings or any other means without prior authorization.
Editorial Director: Luciana Félix
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Copy Editing/Text Preparation: Flávia Martinez
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Human Rights in Evidence: Volume 3
Pro bono research and studies prepared by Mattos Filho
Coordinators – Mattos Filho:
Bianca dos Santos Waks
Flavia Regina de Souza Oliveira
Production Team – Mattos Filho:
Adriana Pires Gentil Negrão
Bruno Sales Ribeiro
Monique Comitre Ceolin
Octavio Azevedo
Priscilla de Souza
Thiago Fernando Costa
Translations Team – Mattos Filho:
Ana Luiza de Albuquerque Araujo
Marco Antonio Dib
Timothy Snowsill
Illustrations:
Sthefany Santos de Oliveira (Fênix)
Coordinating Partner:
Flavia Regina de Souza Oliveira
Mattos Filho 100% Pro Bono:
Adriana Pires Gentil Negrão
Bianca dos Santos Waks
Bruno Sales Ribeiro
Caroline Francisco Sena
Isabella Santana Simões
João Ribeiro Neto
Leonardo de Faria Caminhoto Pedrotti
Mariana Nigri Barbanti
Patricia Cristina Souza Rodrigues
Pro Bono Committee:
Ariane Costa Guimarães
Fabio Teixeira Ozi
Flavia Regina de Souza Oliveira
Juliana Gomes Ramalho Monteiro
Luiz Felipe Centeno Ferraz
Marcelo Sampaio Góes Ricupero
Mario Prada
Paula Moreira Indalecio
Roberto Quiroga Mosquera
Authors:
Adriana Moura Mattos da Silva
Adriana Pires Gentil Negrão
Adriano Rodrigues de Moura
Ana Laura Viegas de Moraes Leme
Andressa Deis Rodrigues
Anna Carolina Gandolfi
Antônio Pedro Marques Nóbrega
Beatriz Martins Camões
Bianca dos Santos Waks
Bianca Lopes Rodrigues
Bianca Lopes Vicente
Bruno Sales Ribeiro Matos
Caio Carvalho de Matos
Camila Laís Silva Amorim
Carolina Samea
Caroline Francisco Sena
Clarissa Emanuela Leão Lima
Danilo Ferreira Almeida Farias
Douglas Stüssi Neves
Eduarda Tedeschi Villela Esteves
Felipe da Silva Telles Pousada
Gabriela Costa Samanez
Gabriela Leão de Sousa
Gabriela Martino de Medeiros
Gabriela Mazzuia Stocco
Gabriela Trovões Cabral
Giovanna Magalhães Bruno
Ingrid França Moraes Soares
Isabela Fernandes Pereira
Isabella Simões
João Henrique D’Ottaviano
João Ribeiro Neto
Júlia Piazza Leite Monteiro
Juliana Ramos Capossoli
Larissa Maria Miranda Santos
Larissa Sabbad Guedes Campos Galdi
Leandro Expedito Rodrigues
Leandro Felipe Barbosa
Leticia Custódio Dias
Letícia Pereira Dias
Lucas Barreto
Luiz Felipe Di Sessa
Luiza Martello Ortega
Marcel Alberge Ribas
Maria Eduarda Gomes
Mariana Nigri Barbanti
Mariana Carneiro Campos Niccoli
Mariana Spoto Cobra
Natália Reis Lucas da Silva
Natan Jamil Angelo
Nathália Akemi Kawata da Silveira
Nuria Debaza Baxauli
Patricia Cristina Souza Rodrigues
Paula Moreira Indalecio
Pedro Ferreira Carvalho
Pedro Henrique Reschke
Rafael de Marchi Andrade
Rafaela Manzano Mesquita
Rafaela Teixeira Goulart
Raimundo Vinícius Silva de Arruda
Tábata Boccanera Guerra de Oliveira
Thais Silva Guilherme
Victor Aguiar Jacuru
Vitória Barroso da Cunha Santos
Vitoria de Assis Pacheco Morais
Yosef Morenghi Fawcett
Ythallo Antonny Melo Alves
Partner Organizations
Immigrant Support Center
(Centro de Referência e Atendimento para Imigrantes – CRAI)
A public organization linked to the Secretariat of Human Rights and Citizenship, the Immigrant Support Center (CRAI) offers specialized, multilingual support to immigrants regardless of their immigration status. Services that CRAI offers include assistance with regularizing immigration status, support with accessing social rights, information on laws and regulations, referrals to the assistance networks, and receiving complaints regarding associated human rights violations.
Cyrus R. Vance Center for International Justice
A member organization of the City Bar Association of New York, the Cyrus R. Vance Center for International Justice seeks to unite the efforts of Latin America’s main law firms on a pro bono basis to assist international agencies, special rapporteurs and working groups at the United Nations (UN) and the Inter-American Commission on Human Rights (IACHR).
Public Defender’s Office of the State of São Paulo
The Public Defender’s Office of the State of São Paulo is a permanent institution whose objective is to provide free, comprehensive legal guidance to those in need. It also promotes human rights and defends individual and collective rights at all judicial and extrajudicial levels. Established in 2006, and a partner of Mattos Filho since 2019, the institution operates independently in the fields of civil and criminal law, and features departments specialized in strategic issues such as childhood and youth, diversity and racial equality, and women’s rights.
Instituto Liberta
Founded in 2017, Instituto Liberta is a civil society organization that works to combat sexual violence against minors. With a strong foundation based on knowledge and reflection, the organization seeks to spread awareness about this issue via campaigns, films, research support, and other actions related to the cause.
Instituto Igarapé
Instituto Igarapé is a civil society organization whose mission focuses on public, climate, and digital security both in Brazil and around the world. It works with the development of research, technology and related solutions to address the main challenges it faces in the areas it operates in, seeking to positively impact public policy and practices in the private sector and civil society.
Trust Law – Thomson Reuters Foundation
Trust Law is a platform developed by the Thomson Reuters Foundation to coordinate one of the largest pro bono networksin the world, Trust Law essentially acts as a clearinghouse, intermediating contact between civil society organizations and free legal services in over 175 countries. Research, events and training programs are among the varied pro bono opportunities the platform makes possible, which are used to strengthen civil society at a global level.
Introduction
Expanding access to justice is fundamental to ensuring human rights, especially when society’s most vulnerable encounter multiple obstacles to accessing their rights. With this premise and the desire to contribute to transforming this reality, Mattos Filho first began offering pro bono legal services 25 years ago to civil society organizations involved in defending and promoting human rights.
After the Brazilian Bar Association (OAB) eventually regulated pro bono legal practice for natural persons – an issue that Mattos Filho was directly involved in – the firm expanded its pro bono services to people in socioeconomically vulnerable situations, focused on defending the ethnic and racial rights, women’s rights, LGBT+ rights and the rights of refugees and asylum seekers. In the same period, a specific team was established within the firm to focus completely on pro bono cases – the first of its kind in the Brazilian legal sector.
In addition to directly assisting people and organizations, the development and dissemination of legal knowledge is central to the firm’s pro bono work. In preparing memoranda, legal opinions and studies with partner organizations, Mattos Filho seeks to offer such organizations strategic input that they can use to guide their litigation and advocacy actions.
In an effort to increase the impact of our work and allow it to reach an even larger number of interested parties, five years ago, Mattos Filho began publishing a series of compilations of the firm’s pro bono work – Human Rights in Evidence.
Coming in the wake of two previous volumes, the publication of Human Rights in Evidence: Volume 3 coincides with the twenty-fifth anniversary of Mattos Filho’s pro bono work. This edition features material the firm produced in partnership with civil society organizations active across six areas: refugee rights, ethnic and racial rights, women’s rights, climate change and the environment, public security, and freedom of expression and access to information.
This edition is the result of the combined efforts of professionals from a range of different practice areas at Mattos Filho. It is thanks to the cooperation and collaboration between these areas that we can apply our expertise in tax, environmental law, real estate, and criminal law (among others) at the service of human rights issues in an innovative and creative way.
This is reflected, for example, in a memorandum the firm drafted at the request of the Public Defender’s Office of the State of São Paulo, in which tax law concepts such as contributory capacity are used to address the impacts of financial penalties on the reintegration of economically vulnerable former prison inmates into society. Another notable example is a study conducted on behalf of Instituto Igarapé regarding anti-money laundering legislation and how it applies within the context of environmental crimes.
Other topics central to the Mattos Filho’s pro bono work also feature in Human Rights in Evidence: Volume 3. Regarding women’s rights, the publication presents an amicus curiae briefprepared on behalf of Instituto Liberta within the scope of a case at the Brazilian Supreme Court concerning the unconstitutional state of affairs in Brazil’s public health system regarding obstacles to legal abortion in cases of pregnancy resulting from rape.
As for ethnic and racial rights, a memorandum commissioned by the Cyrus R. Vance Center for International Justice addresses how the Brazilian justice system violates the human rights of black people, especially in the field of criminal law. The rights of refugees are addressed in legislative and case law analysis for the Brazilian Immigrant Support Center (CRAI), which focused on the right to housing for immigrants and refugees in Brazil.
In a new development, Human Rights in Evidence: Volume 3 also contains chapters related to freedom of expression and access to information, which look at how the use of artificial intelligence in Brazil is regulated and issues regarding the publication of results from private investigations. These issues are highly important to organized civil society, which has become increasingly aware of how new technologies can impact people’s human rights.
The texts that make up this publication are a portrait of Mattos Filho’s pro bono work over the last couple of years. For this reason, each of the texts should be understood in the context of the moment they were first prepared. Each chapter also comes with a short introduction to assist the reader, providing context and information on any significant updates or developments in relation to the issue addressed.
The publication of Human Rights in Evidence: Volume 3 is rooted in the belief that freely available legal knowledge on human rights is one of the key ways that Mattos Filho can contribute to expanding access to justice.
By doing so, Mattos Filho reiterates and strengthens its commitment to both the democratization of access to justice and the defense and promotion of human rights.
Freedom of Expression and Access to Information
For democratic societies, publicizing important information gathered via private investigations is fundamental. At the same time, disclosing such information can lead those whose conduct was exposed to take legal action.
In an effort to assist civil society organizations with their work, Mattos Filho prepared a memorandum addressing Brazilian law aspects of publishing the results of private investigations. Among other topics, it covers the concepts of slander and defamation, trespassing, access to information, government privacy and data protection.
The memorandum was prepared in July 2023.
1.
Publishing results of private investigations under Brazilian law[1]
Introduction
A non-profit organization has asked us to prepare a legal memorandum addressing the landscape of private investigations in Brazil and questions about publishing findings from such investigations in relation to Brazilian law. These questions regard (i) what laws govern private investigations and the publication of investigative findings and (ii) how the law has been applied and enforced by corporations, the government, and the courts.
Specific topics that the organization requested advice on include (a) libel and defamation law (both civil and criminal); (b) privacy law; (c) laws relating to trespass; (d) laws relating to undercover recordings of events/conversations; (e) laws governing the acquisition and use of government trade data; (f) laws relating to fraud/false pretense; (g) laws that restrict publications of material online; and (h) other laws and regulations that impact investigations into government conduct, corporate conduct, and journalistic reporting in Brazil.
This memorandum is not an exhaustive summary of all laws and regulations that apply to private investigations, journalism, and related research in Brazil. It does not analyze or describe all legal aspects pertaining to the non-profit’s intended activities. The research focuses on court precedents and authorities and how they relate to the main Brazilian laws we believe usually apply to matters surrounding private investigations, journalism, and research that may involve the handling of private data.
As a result, our work focused on the general application of codified Brazilian criminal and civil provisions as well as on the rules and principles governing privacy and data protection laws in Brazil. It does not cover regulations governing the profession of private investigator, or focus on private enforcement, corporate or governmental policies, and their application. Unless otherwise specified, all references to laws, statutes, precedents, courts, agencies, and institutions relate to, were issued in, or are organized in Brazil.
Use of data for private investigations and publishing reports
Criminal libel and defamation laws
Decree-Law No. 2,848/1940[2] (Penal Code) provides for three different types of crimes against honor and their respective penalties: (i) calumny (calúnia) – when someone falsely accuses another person of a crime, which carries a penalty of six months to two years’ detention and a fine (Article 138); (ii) defamation (difamação) – when somebody implies something offensive to someone’s social reputation, which carries a penalty of three months to one year’s detention and a fine (Article 139); and (iii) insult (injúria) – when someone insults another person by offending their dignity, which carries a penalty of one to six months of detention and a fine (Article 140).
Nevertheless, legal entities are not criminally liable for calumny, defamation, or insult because those provisions only apply to individuals. Therefore, individual officers and directors, journalists, and employees of legal entities could be held criminally liable for crimes against honor.
The penalties outlined above may be more severe if the individual commits such crimes against (i)the President of Brazil or a head of state of a foreign government; (ii) a public official carrying out their public duties; and (iii) minors, individuals over 60 years of age or people with disabilities. The penalties may also be three times as severe in the event the crime against honor is committed or published on social media. If defendants recant calumnious or defamatory statements before a court decision is reached, those penalties no longer apply. However, this exception does not apply to insult (injúria).
Legal entities and corporate entities may be considered victims of defamation crime because the courts and case law accept that such organizations have a social reputation. However, calumny and insult crimes apply only to individuals.
According to precedents of the Superior Court of Justice (STJ)[3], all three crimes against honor must involve a willful, conscious attempt to harm the honor of the alleged victim (specific intent). Without this unequivocal intention to defame or insult, there is no crime against honor. Consequently, as a rule, courts have decided that the intention of teasing, narrating, informing, defending, or criticizing does not meet the specific intent requirement for the purposes of making one liable for a crime against honor.[4]
Specifically for calumny, both of the following requirements must be met:[5](i) the accusation of a crime defined in Brazilian legislation and duly described, considering time and location; (ii) the person that makes the false accusation must be aware it is false. Hence, they must know that the crime did not happen or that the calumny victim did not commit the crime.
Civil libel and defamation laws
From a civil law perspective, the Brazilian legal system provides constitutional protections of rights related to intimacy, private life, honor, and image, which are considered inviolable. In the event of any violation, Article 5, V and XII of the Federal Constitution, and Articles 186 and 927 of Law No. 10,406/2002[6] (Civil Code) assure the right to indemnification for loss and damages. Therefore, the violation of such rights due to investigations or reports may give rise to civil liability, including compensatory and ‘moral’ damages – the latter meaning psychological or reputational harm.
Not every unfavorable or unpleasant form of conduct leads to civil indemnification for moral damages. Courts commonly analyze whether the specific situation resulted in a violation of personality rights or whether the conduct resulted in a ‘mere annoyance’ typical of daily life. Once a court finds a violation for moral damages has occurred, the amount one is liable for depends on a case-by-case analysis. Courts usually take into consideration the seriousness of the offense as well as the economic situation of the parties involved in the lawsuit.
Furthermore, Federal Supreme Court (STF) and STJ precedents provide that the following news and criticism are not unlawful acts and, as such, do not lead to liability for damages: (i) true or credible facts, even if they contain harsh, ironic, or ruthless opinions, especially about public figures who carry out state activities; (ii) facts of general interest related to the public activity the notified person carries out.[7]
As a rule (and according to precedents from STF)[8], we highlight that the abuse of freedom of expression preferably should be fixed via retraction, right of reply (according to Article 5, V of the Federal Constitution) or indemnification for loss and damages rather than any previous censorship, in order to reduce state intervention in the dissemination of news and opinions.
Privacy laws
Law No. 12,965/2014 (Internet Act)[9] and Law No. 13,709/2018 (General Data Protection Law – LGPD)[10] govern a large part of privacy and data protection rights in Brazil.
The Internet Act and the LGPD both regulate similar situations regarding personal data processing. On the one hand, the Internet Act regulates the use of the Internet in Brazil and obligates organizations to obtain consent for processing personal data on the Internet. At the same time, the LGPD provides other lawful grounds for processing personal data.
Yet, this has created difficulty in interpreting the competing statutory obligations. Commentators consider the LGPD to be more recent and specific and will likely prevail in relation to legal basis obligations data controllers must meet when processing personal data. Nevertheless, neither the courts nor the Data Protection Authority (ANPD) have yet to resolve this issue.
Overview of the LGPD
The LGPD applies to any processing operation performed by an individual or legal entity (whether public or private) regardless of the means, the country where it is headquartered, or the country where the data are located, provided that (i) the processing operation occurs in the Brazilian territory; (ii) the goal of the processing operation is to offer or provide goods or services, or data processing of individuals located in the Brazilian territory; or (iii) the personal data that are subject to processing have been collected in the Brazilian territory.
In this regard, when conducting research and reports, organizations must observe the following list of rules and principles in connection with data privacy.
Data protection principles
The LGPD states that personal data processing operations must be conducted in good faith and follow ten principles: (i) purpose; (ii) adequacy; (iii) necessity; (iv) free access; (v) data quality; (vi) transparency; (vii) security; (viii) prevention; (ix) non-discrimination; and (x) liability and accountability.
As a direct consequence of the transparency principle, the LGPD states that data subjects have the right to easily access information regarding the processing of their data, which must be made available in a clear, adequate, and ostensive manner.
The data subject must receive information regarding (i) the specific purpose for processing; (ii) the form and duration of processing, with respect to commercial and industrial secrecy; (iii) the controller’s identification; (iv) the controller’s contact information; (v) information regarding the shared use of data; (vi) the processing agents’ liability; and (vii) data subjects’ rights with explicit reference to the rights contemplated in the LGPD.
Legal basis for processing personal data
As with the European Union’s General Data Protection Regulation (GDPR), the LGPD provides several applicable legal bases for processing personal data, such as (i) legitimate interest; (ii) consent; (iii) the performance of a contract; (iv) compliance with a legal or regulatory obligation; (v) the need to protect credit; (vi) to exercise rights during a court, administrative or arbitration proceeding, among other bases.
There are specific and more restrictive legal bases for processing sensitive data, which the LGPD defines in an exhaustive list as personal data on racial or ethnic origin, religious belief, political position, membership in a trade union or affiliation to religious, philosophical, or political organization, data concerning health or sexual life, genetic or biometric data.
Please note that to rely on legitimate interest, controllers must assess: (i) the purpose of the processing (i.e., whether there is, in fact, a legitimate interest); (ii) the necessity (i.e., whether the processing is necessary to reach that interest; and (iii) balancing interests (i.e., consider the individual’s interest).
Public data
The LGPD regulates two categories of publicly available personal data: (i) publicly accessible personal data and (ii) personal data made manifestly public by the data subject. The LGPD provides different rules for processing in each category.
Publicly accessible personal data can be defined as data publicly disclosed by third parties (and not the data subject) and freely accessed by the public (broad publicity and accessibility). It is inherently public – such as by means of a statutory rule. The LGPD provides that the processing of publicly accessible personal data must consider the purpose, the good faith, and the public interest that justified it being made available (Article 7, Paragraph 3).
Personal data made manifestly public by the data subject can be defined as data intentionally disclosed by the data subject themself in a manifestly public way. The LGPD provides that the consent requirement is considered legally waived in the case of processing of personal data made manifestly public by the data subject. However, it still protects the rights of the data subject and the principles provided in the statute (Article 7, Paragraph 4).
Furthermore, the LGPD provides that the subsequent processing of publicly accessible personal data and personal data made manifestly public by the data subject may be carried out for new purposes, provided that legitimate and specific purposes to the new processing and the preservation of the rights of the data subject are observed, as well as the grounds and principles outlined in the LGPD (Article 7, Paragraph 7).
In general, the processing of both categories of publicly available personal data must (i) observe the purpose and the good faith that justified it being made available; (ii) observe the public interest or the data subject›s intentions (depending on the category of the data) that justified it being made available; (iii) refrain from processing personal data for discriminatory or unlawful purposes, in accordance with the non-discrimination principle in the LGPD; and (iv) guarantee that the publicly available personal data that is processed is relevant, strictly necessary, proportional and non-excessive in relation to the intended purpose.
Data subjects’ rights
At any time and upon request, the data controller must provide the data subject with (i) a confirmation that the processing and access to their data occurred; (ii) rectification, anonymization, blocking, or elimination of data; (iii) data portability; (iv) information regarding data processed with their consent; (v) information regarding the public and private legal entities with whom the controller has shared the use of data; (vi) information on the possibility of not providing consent (and its implications); and (vii) the option to withdraw consent.
International data transfers
Among other authorized transfers, the LGPD provides that international data transfers are only permitted when: (i) the transfer is carried out to countries or international organizations that provide an adequate degree of personal data protection (still to be determined by the ANPD); (ii) the data controller offers and proves guarantees to comply with the principles, the rights of the data subjects and the data protection regime provided for in the LGPD, in the format of binding corporate rules or standard data protection clauses; (iii) the data subject consents to the transfer (Article 33).
While the ANPD has not yet provided a list of countries with an adequate degree of protection, a widely used mechanism to carry out data transfers and offshore storage is binding corporate rules (BCR) or standard data protection clauses (SCCs) to regulate international data processing (based on the wording of the BCRs/SSCs currently approved by the European Data Protection Board).
According to the ANPD’s regulatory agenda, it is expected to regulate the requirements for the lawful transfer of personal data outside of Brazil in 2023.[11]
The LGPD’s applicability to journalistic, research and study activities
Freedom of expression, information and communication are fundamental grounds of the LGPD. More specifically, the LGPD sets forth that the law does not apply to the processing of personal data for journalistic purposes (Article 4, II-A). This exception was included to avoid any limitation of constitutional rights.
The Superior Electoral Court has already recognized that the passing of such language in the LGPD was intended by legislators to maintain public access to information in the public’s interest for journalistic purposes:
Moreover, Article 4, Item II, a, of the LGPD itself expressly provides that the legal protection of data processing does not apply to journalistic purposes, reflecting the legislature’s intention to uphold public access to information in the public interest. Investigative journalism and civil society organizations engage in social control, where access to open data is indispensable. Detailed information about government operations, public contracts, employees and appointees, electoral campaign donations, expenses and revenues, public debts, budgets, and other data constitute important and essential information for the technical work of investigation, study, interpretation, and data analysis.” (Superior Electoral Court. Proceeding No. 06001785620216000000 BELO HORIZONTE - MG 060017856, Rapporteur: Justice Raul Araujo Filho, Date of Judgment: September 16, 2022, Date of Publication: DJE – Electronic Journal of Justice, Volume 183.)
Even though the LGPD will not apply to such activities, this exception does not prevent the journalistic community from pursuing best practices for handling personal data (which can be withdrawn from the LGPD) and complying with the principles and other provisions of the law when processing personal data. Moreover, it does not include other commercial activities carried out that are not of a journalistic nature.
The applicability of the LGPD for research and study activities
The LGPD provides specific legal bases for research bodies to process data as part of conducting studies, provided that anonymization is guaranteed whenever possible (Articles 7, IV and 11, II-C). However, if the organization is not legally established in Brazil, it cannot rely on this legal provision to justify its processing activities.[12]
Hence, the processing of personal data, including for research purposes, would have to rely on one of the legal grounds provided for in the LGPD and comply with the principles and duties set forth by the LGPD.
In this regard, we recommend each specific case be analyzed considering (i) the nature of data; (ii) the legitimate expectations of the data subject and their relevant rights; (iii) the LGPD principles; (iv) the appropriate security measures; and (v) the ethical standards applicable to the hypothesis.
In addition to that, the LGPD provides that data must be deleted upon the termination of processing, except if stored for studies by research bodies, if anonymization is guaranteed whenever possible (Article 16).
The LGPD does not apply to academic activities, except for the obligation to determine a legal basis for processing data in Articles 7 and 11. However, the ANPD guidelines on the topic recommend that this is only applicable to data exclusively linked to academic purposes. Moreover, if only part of the data processing is for academic purposes, it must not be interpreted as generally exempt from the LGPD.
In the event of any doubt on whether data processing should be considered under the exception for academic purposes, the ANPD guidelines advise in favor of observing the provision of the LGPD. This advice must be factored in, especially when the processing involves high risks to data subjects, such as the large-scale processing of sensitive data or data involving new technologies.
Laws related to trespass
The Federal Constitution (Article 5, Item XI) and the Penal Code (Article 150, Paragraph 3) provide that no one can enter someone else’s house without their consent, except for (i) the case of an ongoing crime (flagrante delicto) – i.e., a crime that is being committed or has just been committed; (ii) the case of a disaster; (iii) to provide aid in the case of serious risk to someone’s life; and (iv) by judicial order (during the daytime).
Therefore, entering or remaining in someone else’s house (or its premises) against the express or tacit will of the rightful person classifies as the crime of violation of domicile (Article 150 of the Penal Code), which may subject the offender to one to three months’ detention or a fine.
Note that we have not identified specific precedents involving violation of domicile in the context of journalistic investigation. However, trespassing on private property may also give rise to civil liability. In a case adjudicated by the São Paulo Court of Appeals[13], journalists from a TV channel entered a house during a search and seizure operation conducted by the police. The
TV company was found liable to pay indemnification to the house’s owner for moral damages, as the authorization given to the police was not enough for the journalists to enter the house.
Besides violation of domicile, we believe other types of private assets may give rise to similar discussions. One example is the crime of invasion of computing devices, which carries a penalty of one to four years’ imprisonment and a fine (Article 154-A of the Penal Code). Such a penalty may be increased if the information obtained by the invasion is published or shared, or if it results in (i) economic damage; (ii) gaining access to private communication; (iii) commercial and industrial secrets; and (iv) confidential information.
As a relevant example, we highlight the case of journalist Glenn Greenwald, founder of The Intercept. In January 2020, the Federal Prosecution Service filed criminal charges against him and six others for their alleged involvement in hacking the cell phones of Brazilian public authorities related to Operation Car Wash.[14] The private information the journalist obtained led to several news reports by The Intercept Brasil.
However, the relevant federal courts dismissed the charges based on a preliminary decision rendered by STF Justice Gilmar Mendes in August 2019, which prohibited public authorities from opening investigations in connection to Glenn Greenwald on the grounds that the constitution protected the confidentiality of the source that gave him the material.[15]
Note that journalists’ prerogative to preserve the confidentiality of their sources (whenever necessary for carrying out their professional duties) is provided for in the Federal Constitution (Article 5, Item XIV), as is their right to freely create journalistic works (Article 220, Paragraph 1). These rights protect the journalist against any person – including authorities and public entities – who may seek to compel the journalist to indicate the source of the information. According to STF precedents, journalists may not be subject to any criminal, civil or administrative liability when they exercise this legitimate right..[16]
Laws related to undercover recordings of events/conversations
Private eavesdropping or the interception of communications between third parties is prohibited by Law No. 9,296/1996 (Wiretap Act) and constitutes a crime. This fact notwithstanding, there are a series of precedents at the STF and STJ that authorized the use of recordings made by one of the parties involved in a conversation as evidence in legal proceedings, even when the other party was not aware of the recordings.[17]
An amendment inserted into the Wiretap Act by Law No. 13,964/2019 further provides that a recording by one of the parties in a conversation may be used in matters of defense (when the integrity of the recording is proven), even without the prior knowledge of the police authorities or public prosecutors (Article 8-A, Paragraph 4).
The Wiretap Act regulates the interception of communications. It provides that intercepting telephone, computer, or telematics communications, as well as performing covert listening or breaking the secrecy of justice without judicial permission or for purposes not authorized by law, are criminal offenses (Article 10).
Given the Wiretap Act does not define ‘interception’ or ‘covert listening’, such concepts have been interpreted by courts, legal scholars, and authorities. The caller and the intended call recipient are free to listen to communications they are parties to, and these do not fall within the scope of interception. Moreover, ‘covert listening’ has been interpreted to involve someone placing a wiretap or listening device at a physical location (e.g., under a table, inside a pen, cell phone recorder etc.) and not through phone or mail.
Therefore, calls, text messages and other forms of communications between third parties may not be intercepted and recorded for journalistic purposes in Brazil.
Laws governing the acquisition and use of government trade data
The public sector publishes certain reports regarding trade data. There are no specific laws related to the use of such data. According to legal scholars, the availability of open government data enables information to be used in the manner and at the convenience of the interested party so that it can be mixed and combined to add more value to the data.[18]
In view of this, we do not envisage restrictions on the use of government trade data published by the public sector for investigative work, and it is commonly used in the market.
Laws related to fraud/false pretense
The Penal Code defines larceny (estelionato) as obtaining, for oneself or for others, an unlawful advantage at the expense of others, inducing or keeping someone in error through artifice, deception, or any other fraudulent means (Article 171). It carries a penalty of one to five years’ detention and a fine.
Furthermore, the Penal Code provides that the following forms of conduct may constitute the crime of false identity: (i) attributing a false identity to oneself or a third party to obtain an advantage for one’s own or someone else’s benefit, or to cause harm to others, which carries a penalty of three months’ to one year’s detention and a fine; (ii)using third-party identity document as one’s own, or giving one’s own documents of this nature (or of a third party) for someone else to use, which carries a penalty of four months to two years’ detention and a fine (Articles 307 and 308).
The Penal Code also prohibits the falsification of public and private documents in separate statutory clauses, which carry a penalty of two to six years’ detention and a fine, and one to five years’ detention and a fine, respectively (Articles 297 and 298).
We have not identified specific case precedents involving those types of crimes in the context of journalistic investigation.
Laws restricting the publication of material online
Apart from the obligations set forth in the Internet Act, there is no specific legal provision restricting the publication of online material in Brazil.
Other laws and regulations impacting private investigations into government and corporate conduct and journalistic reporting in Brazil
We have not identified other laws or regulations related to investigative journalism.[19]
Conclusions
Article 5 of the Federal Constitution and precedents from STJ and STF provide strong protections for freedom of expression and other related rights, such as the right to keep journalistic sources confidential. However, those rights may be limited in cases involving the violation of personality or individual rights related to private property, intimacy, private life, honor, and image, which could subject organizations to civil liability and its officers, directors, employees, and other agents to criminal and civil liability.
Specifically in regard to the investigative journalism landscape and the publication of investigative findings, activities in Brazil are governed by a combination of laws and regulations, especially the Penal Code, the Civil Code and the LGPD.
In general, the LGPD does not apply to journalistic activities. However, its main provisions may serve as best practices for the use of personal information in Brazil. In relation to academic activities, research, and studies, the LGPD must be observed, and its main obligations involve (i) selecting legal bases for processing; (ii)
