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Brazil: Federal Supreme Court Orders Criminal Investigation into Fake News Involving the Court

(Apr. 1, 2019) On March 14, 2019, Minister Dias Toffoli, the President of the Brazilian Federal Supreme Court (Supremo Tribunal Federal, STF), announced that he had enacted an Administrative Act (Portaria) ordering the opening of a criminal investigation into fake news and internet threats targeting the STF and its ministers and family members. (President of STF Opens Investigation into Threats and Fake News Targeting the Court, STF: NOTÍCIAS STF (Mar. 14, 2019) (in Portuguese).)

Declaring that “[t]here is no democratic state of law or democracy without an independent judiciary, and no free press,” Toffoli stated that “[t]he STF has always been active in the defense of freedoms, especially the freedom of the press and a free press in several of its judgments.” (Id. (all translations by author).) Minister Alexandre de Moraes was designated to lead the investigation, which he said he would begin working on immediately. (Id.)

The authority of the President of the STF to open an inquiry is provided for in article 43 et seq. of the Court’s Internal Rules (Supremo Tribunal Federal, Regimento Interno, updated through Oct. 2018, STF website), which states that “[i]n the event of a violation of criminal law at the headquarters or annex [dependência] of the court, the President shall initiate an investigation, if it involves an authority or person under his/her jurisdiction, or delegate this assignment to another minister.” (Id.)

At the beginning of the criminal investigation, which was not seen as appropriate by various other ministers of the STF, Moraes mentioned in his initial order (despacho inicial) that the object of the investigation includes “the leaking of information and confidential documents in order to attribute the practice of illegal acts to members of the Supreme Court and/or insinuate [that the members of the Court have committed such acts].”  (Reynaldo Turollo Jr., STF Inquiry to Investigate Leaking of Confidential Documents Against Ministers, FOLHA DE SÃO PAULO (Mar. 20, 2019) (in Portuguese).)

The order was apparently targeting agents of the Brazilian Internal Revenue Service (Receita Federal) who, in February 2019, allegedly leaked documents regarding Minister Gilmar Mendes and his wife. (Id.)

The investigation includes “the leaking of information and confidential documents, with the purpose of attributing the practice of illegal acts to members of the Supreme Court and/or insinuating [that the members of the Court have committed such acts] by those who have a legal duty to preserve secrecy, and verifying the existence of financial planning schemes and [their] mass dissemination in social networks, with the aim of harming or exposing to injury the independence of the Judiciary.” (Id.)