The reporting of the Irish Olympic Ticketing Scandal in Brazil has raised some questions about how different media systems work when it comes to the investigative and judicial process. When the police probe hit international headlines some Irish commentators expressed shock over the type of information and images that were emerging around the events in Brazil.
In particular, video images of the police calling to interview Pat Hickey in his hotel and the subsequent release of images of passport and travel documentation were a surprise to some as it would not be possible to publish this type of information in Ireland were a similar investigation underway here. But different media cultures work in different ways, it is not that one is right or wrong, it is about knowing the ‘whys’ and ‘hows’ of different media systems.
In Ireland the main rules on court reporting are derived from the Press Code of Practice Principle 7 which says “The press shall strive to ensure that court reports (including the use of images) are fair and accurate, are not prejudicial to the right to a fair trial and that the presumption of innocence is respected.” And following from this there is a host of case precedent that places restrictions on how official investigations can be covered.
This has led to a comparatively restrictive system that usually places the privacy and presumption of innocence of defendants ahead of public interest. So much so that as well as restricting information, it is not acceptable to publish images of an accused that might imply guilt, even handcuffs must be cut out of published images.
We don’t really know what is happening and events are unfolding daily. But It looks like there is more to come in Irish involvement in the Olympic Ticket affair. So in the interest of offering some context and getting to know the Brazilian media culture when it comes to coverage of these proceedings, we asked Brazilian Lawyer, Virginia Novaes Procópio de Araujo, who is researching for a PhD in DCU’s School of Law and Government for some insights.
Here’s what she had to say:
Brazil has been through a military dictatorship from 1964 until 1985, when general elections took place. In the year of 1988, a new Constitution was published, bringing several fundamental rights into its content. During the years of military dictatorship, a Law for the Press and Freedom of expression was created (Law 5.250 of 1967), enforcing means of censorship and mechanisms to criminalise journalists for the content of their publications. This law was only revoked in 2009 by the Brazilian Supreme Court, offering more freedom to journalists.
The Brazilian jurisprudence claims that freedom of expression is not absolute and the personality rights such as someone´s reputation, privacy, image and honour should also be respected, but are not absolute either. They can all be found in the Brazilian Constitution, Art. 5. Additionally, in the Constitution, everyone is considered innocent until proven otherwise. Therefore, in theory, Brazilian journalists cannot publish someone´s name, ID, address or any private information on the account of being a crime suspect. This would lead to a “pre-judgment” and “pre-conviction” of the person.
Nevertheless, in practice, in the clash of rights (freedom of expression x privacy), there is plenty of room for excessive freedom from the press. For instance, if a public figure is a suspect in a criminal investigation, it is considered effective public interest to publish that information, i.e., everyone is entitled to know that and the personality rights of that public figure are diminished. However, if there is abuse or false information being published, later the person under investigation can file a civil lawsuit claiming damages and criminal proceedings against the journalist.
On the publication of images, she gave us this insight.
The Brazilian Press has been given considerable freedom, due to the constant fear of returning to a state of censorship and excessive punishment to journalists during the years of military dictatorship (1964-1985). The Brazilian Supreme Court decided in 2009 to revoke a Press Law from 1967, claiming it clashed with the fundamental rights of the 1988 Constitution, such as freedom of expression. The Press law of 1967 allowed for easy criminal proceedings against journalists, inhibiting their acts, it was purposefully created to ensure censorship at the time of its creation. This decision was praised, but some judges, such as Supreme Court judge Ellen Gracie, has demonstrated concern with the complete elimination of this law, claiming it led to an excessive freedom to the Press, which could interfere with other important fundamental rights, such as honour and privacy.
No new Press law has been put into place as of 2016. Therefore, in practice, in order to respect the Constitution, journalists are not allowed to exacerbate their freedom of expression if it means violating someone´s right to privacy, image and honour. If that happens, the person in question can sue the journalist or the newspaper through a civil claim (damages) and ask for reparation or initiate criminal proceedings. It has made the process much more judicial, in the sense that a judge will evaluate the grounds of the case, whereas previously, it was practically an immediate punishment to the journalist.
Lastly, the Constitution claims that affairs that are relevant to public knowledge should be published and, thus, a public figure under investigation has its personality rights (image, honour, privacy) diminished and has to accept that his/her name will be on the Press, as well as any other relevant information that is deemed justifiable for public knowledge.
For this reason, given that Pat Hickey was the representative of the Olympic Council of Ireland, it is likely he has been perceived as a “public figure” and that this investigation is relevant to the public. However, the absence of a proper Law to provide guidelines to journalists is giving leeway for abuse, and lawsuits involving the violation of personality rights should be expected.
In my opinion, Brazil is going through a process of affirming its institutions and rights, and demonstrating that Brazil is a “serious country”, in which impunity is no longer the rule. Just one look at the Ryan Lochte incident and you will understand what I am talking about. Someone´s privacy is a fundamental right, but when it clashes with a public interest, that right is diminished, and that seems to be the case here, even if it is completely contrary to how the Irish Press covers criminal investigations.