Toffoli denies injunction to Folha regarding PSB's "bribery" case.

247 - Folha de S. Paulo may be about to publish an unprecedented and historic right of reply. This comes after being ordered by the Pernambuco Electoral Court to grant space for defense to candidate Paulo Câmara (PSB), who was hit by a powerful headline in Folha about the purchase of political support from Pros for R$ 6 million (revisit the case). hereThe newspaper appealed to the Superior Electoral Court to avoid complying with the decision. However, the appeal was denied by Minister Dias Toffoli and forwarded to the case's rapporteur, Gilmar Mendes. If Paulo Câmara, who is running for governor of Pernambuco, publishes the right of reply as determined by the court, he will have Folha's headline to defend himself.

Read Toffoli's decision below:

DECISION

This is a precautionary action, with a request for preliminary injunction, filed by Empresa Folha de São Paulo S/A, seeking the granting of suspensive effect to the special appeal filed against a judgment rendered by the Regional Electoral Court of Pernambuco that "granted the Right of Reply to candidate PAULO HENRIQUE SARAIVA CÂMARA, in the proceedings of Electoral Appeal No. 1159-10.2014.6.17.0000, due to a journalistic article published in the newspaper Folha de S. Paulo, on July 23, under the title 'Deputy reports bribe for support of candidate from Campos'" (p. 2).

The author makes the following claims:

a) an electoral representation was filed by Paulo Henrique Saraiva Câmara against the current plaintiff, requesting the granting of the right of reply, due to the aforementioned journalistic material (p. 3);

b) that the Regional Electoral Court of Pernambuco upheld the decision granting the right of reply to Paulo Câmara, "ordering the plaintiff to publish the text of the reply in her newspaper within 48 hours" (p. 3);

c) having filed a special electoral appeal against the aforementioned judgment, asserting a violation of article 58 of Law No. 9.504/97 (p. 5);

d) given the absence of a suspensive effect of the special appeal filed, "the present precautionary action arises as the only measure capable of preventing the irreversible violation of freedom of the press (p. 5);

e) there is no just cause in the representation proposed by the defendant, as he does not see "in the previously attacked report any slanderous, defamatory, injurious or knowingly false statement regarding the candidate", contrary to the provisions of art. 58 of Law No. 9.504/97 and TSE Resolution No. 23.398 (p. 5);

f) the journalistic report merely reproduced "an interview given by the former President of the Pros Party, in which he discussed the alleged offer of financial advantage for his party" (p. 6);

g) since the matter is "strictly journalistic in nature, of undeniable public interest, the newspaper merely exercised its constitutionally guaranteed right/duty to inform" (p. 6);

h) that voters have the right to "access all information of public interest regarding their candidates for elective office, in a responsible, impartial and transparent manner" (p. 9); and

i) the requirements of fumus boni iuris and periculum in mora are present, since "[...] freedom of the press is enshrined in Article 5, paragraphs IV, IX, XIV, and Article 220 of the Federal Constitution [...], and the damage caused by the immediate publication of the Right of Reply will be irreversible, should this Honorable Superior Electoral Court decide to grant the Special Appeal filed. On the other hand, granting this preliminary injunction to suspend the effects of the appeal until its final judgment will not cause any harm to the candidate" (pp. 11-12).

It requests the granting of the preliminary injunction "[...] to give suspensive effect to the Special Appeal filed and suspend the effects of the appealed judgment" (p. 12).

The case files were assigned to the eminent Minister Gilmar Mendes and, due to the court recess, were submitted to the Presidency for review regarding any potential urgency as provided for in Article 17 of the RITSE (page 61).

It's the report.

I decide.

In this summary assessment inherent to precautionary proceedings, I do not find that the requirements for granting the injunction are met.

As is known, granting a preliminary injunction in a precautionary action to suspend the effects of an appeal that does not have such effect requires the simultaneous presence of fumus boni juris, embodied in the plausibility of the right invoked, and periculum in mora, which translates into the ineffectiveness of the decision if granted only in the final judgment of the action.

In this case, the author seeks the granting of suspensive effect to a special electoral appeal filed against a regional court decision that granted the right of reply, due to "the dissemination of facts, without proof, that characterize criminal conduct, involving the party and the candidate's name" (p. 48).

At first glance, I believe the regional court's decision does not deviate from the understanding of the Superior Electoral Court, according to which the constitutional guarantees of free expression of thought, freedom of the press, and the right to criticize are not absolute. Along these lines, see:

2010 ELECTIONS - RIGHT OF REPLY - PRINT MEDIA. JURISDICTION. OFFENSE. GRANTING.

1. Jurisdiction of the Electoral Court to process and judge the right of reply. Whenever a media outlet refers directly to candidates, parties, or coalitions competing in the election, the Electoral Court will have jurisdiction to act in cases where the right to inform has gone beyond the scope of offense or contains false information.

2. Constitutional guarantees of free expression of thought, freedom of the press, and the right to criticize are not valid. No right or guarantee is absolute (HC 93250, Justice Ellen Gracie, DJe 27.6.2008; RE 455.283 AgR, Justice Eros Grau, DJ 5.5.2006; ADI 2566/MC, Justice Sydney Sanches, DJ 27.2.2004).

3. A news report that analyzes the content of a statement made by a candidate, previously deemed offensive by the Electoral Court, in order to attribute veracity to it, exceeds the limits of information. The statement that attributes an association with drug trafficking to a Political Party opens the door to the right of reply.

[...] (RP No. 1975-05, Rapporteur Justice Henrique Neves, published in session on August 2, 2010).

Furthermore, the Regional Electoral Court of Pernambuco, sovereign in its analysis of the body of evidence, concluded that the impugned journalistic material constituted an offense against the candidate, as it conveyed "defamatory content, insofar as it discloses the offer of financial advantage in exchange for electoral support" (p. 55).

A contrary understanding, in this initial analysis, would require a re-examination of the evidence in the case file, a procedure incompatible with the chosen legal avenue. Therefore, suspending the regional court's decision, if possible, would depend on a detailed analysis of the body of evidence, which is not admissible in an appeal seeking a stay of execution, much less in a precautionary action, since "the granting of a preliminary injunction requires the combined presence of the authorizing requirements, which must be immediately apparent" (AgR-AgR-AC No. 3220, Justice Ricardo Lewandowski, DJe 1/9/2009).

In light of the foregoing, I deny the requested preliminary injunction. The case file should be forwarded, in due course, to the office of the esteemed reporting judge.

Publish yourself.

Brasilia, July 31, 2014.

Minister Dias Toffoli

President