The constitutional protections for press freedom are being challenged in Brazil. Last month, federal prosecutors in Brazil filed charges against US journalist, Glenn Greenwald, for cybercrimes. Greenwald, the journalist who published Edward Snowden’s intelligence leaks, and one of the founders of news site, The Intercept, has a history of exposing government corruption and criticizing President Jair Bolsonaro’s administration. Last year, Greenwald released private chats between top government officials, which revealed possible corruption by Justice Minister, Sergio Moro. The Intercept asserted that the exchanges were obtained from an “anonymous source” while implicated politicians, including Moro and Bolsonaro, alleged that Greenwald had encouraged hackers to obtain the information.
Brazil has robust press freedom laws. The Constitution includes special protection for journalists from criminal liability for publishing information from illegally obtained sources if it’s within the public interest to do so, and the journalists have not participated in the theft itself. In an extraordinary move, the Supreme Court barred the federal government from investigating Greenwald for receiving the intercepted messages exchanged between top officials. “The right corollary of freedom of expression is the right to obtain, produce and disseminate facts and news by any means. The constitutional secrecy of the journalistic source makes it impossible for the State to use coercive measures to constrain professional performance and to investigate the form of reception and transmission of what is brought to public knowledge,” the ruling stated.
Last December, Brazil’s federal police concluded their investigation into the hacking. The police claimed that Greenwald was not the subject of the investigation, and therefore they were not circumventing the Supreme Court decisions, but his name emerged in communications with the hackers. Police established that “it is not possible to identify moral or material participation by the journalist [Greenwald].” In the transcribed audio files, Greenwald tells the hacker to evade criminal liability for participating in the hack, he would have to prove he only spoke to the source after the criminal action was completed. Authorities noted that Greenwald exercised caution when interacting with the hackers and acknowledge his legal duties as a journalist.
Federal prosecutors charged Greenwald with criminal association and illegal interception of communications, alleging that some audio tapes demonstrate he “helped, encouraged and guided” the hackers. However, a federal judge declined to proceed with the charges because of the previous injunction issued by the Supreme Court against investigations into him. But Greenwald feels that refusing to move forward on procedural grounds is not the victory for press freedom it appears to be: “Anything less would leave open the possibility of further erosion of the fundamental freedom of the press.” The judge ultimately noted that if the injunction was overturned, he would be open to formally charging Greenwald.
Greenwald intends on approaching the Supreme Court for a more conclusive ruling on press freedom. As this unfolds, press freedom and the rule of law in Brazil, as well as the strength of the country’s institutions, will be tested. We hope that the judiciary once again defends the rights of journalists who are acting in the public interest, and does not foster an environment of fear, corruption and secrecy.
The court documents referred to above will be available on CYRILLA in the coming months.