Freedom of Expression

Press release R139/21

Offices of Special Rapporteurs express concern about the use of criminal mechanisms for defamation against a university professor in Brazil and call on the State to respect academic freedom

May 28, 2021

Washington D.C. - The Office of the Special Rapporteur for Freedom of Expression (SRFOE) and the Office of the Special Rapporteur on Economic, Social, Cultural and Environmental Rights (SRESCER) of the Inter-American Commission on Human Rights (IACHR) express their concern about the filing of a criminal defamation lawsuit against Conrado Hübner Mendes, a professor at the University of São Paulo (USP), and call on the Brazilian State to respect the right to freedom of expression and academic freedom.

According to publicly known information, on May 20, the Attorney General of the Republic (PGR) of Brazil, Antônio Augusto Brandão de Aras, reportedly filed a criminal complaint with the Federal District Court for slander, libel, and defamation against Conrado Hübner Mendes, professor at the USP Law School and columnist for the newspaper Folha de São Paulo. In his brief, the Attorney General argued that the professor had committed crimes against his honor against by criticizing his actions through a series of tweets and an article in the Folha de São Paulo newspaper from January this year. As these Offices were able to learn, the messages from Conrado Hübner Mendes, which reportedly motivated the criminal action, branded the official a "servant of the president" and affirmed that certain omissions in his judicial action were supposedly benefiting the head of State and his political interests. According to the legal defense of Augusto Aras, the professor and columnist did not limit himself to "promoting criticism through the narrative or simply formulating a harsh criticism or with highly negative content", but he would have also publicly accused the Attorney General of the crime of prevarication.

According to the information received by the Offices of the Special Rapporteurs, prior to filing a criminal complaint, the Attorney General of the Republic would have tried other means of sanctioning against the professor. As publicly disclosed, on May 3, the Attorney General asked the University of São Paulo to, through its Ethics Commission, investigate the conduct of Professor Conrado Mendes for the publications made against him, which in his opinion constituted attacks to his honor and reflected a violation of ethical standards, so that "the measures that the case requires be adopted." Specifically, the Attorney General of the Republic stated that the statements of Professor Conrado Mendes had violated articles 5, 6, and 7 of the USP Code of Ethics, which establish, among others, the duty to "promote respect for the truth"; "act in a manner compatible with morality"; refrain from "disseminating information in a sensational, promotional or false manner"; and the duty to "comment on facts whose veracity and origin have been confirmed or identified." Subsequently, a public statement from the PGR's Communication Secretariat warned that "the issue under discussion is not criticism, but rather its lack of foundation and the disrespectful way in which it is done, without taking into account that all the Attorney General's statements General were accepted by the STF [Supreme Federal Court]".

The requirement for ethical investigation aroused criticisms in the academic sphere. Thus, for example, on May 19, 88 university professors publicly endorsed Conrado Hübner Mendes and rejected the Attorney General's attempt to intimidate "a university professor who criticizes him, whose freedom he should respect and defend, compared to the constant passivity that he presents regarding the President of the Republic, whom he should rigorously supervise". On the other hand, a petition for signatures organized by professors outside the USP and addressed to the Rector of the aforementioned university argued that it is an "unprecedented attack" on the academic, scientific, and intellectual autonomy of the USP, which "intends to restrict and threaten not only the inviolable right to freedom of expression of Professor Hübner Mendes, but also that of all university professors, inside and outside USP, who have different types of action in the public debate, speaking out on issues of general interest, contributing to the plurality of thought and critical analysis, and thus rendering an inestimable service to society and our democracy".

In the first place, the Office of the Special Rapporteur for Freedom of Expression observes that the criticisms made by the professor and columnist Conrado Hübner Mendes that motivated the criminal complaint are directed at a public authority and decisions inherent to his position, and therefore subject to controversy and to public scrutiny for the principles that govern a democratic society. The IACHR has stated on multiple occasions that the use of criminal mechanisms to punish speech on matters of public interest or on public officials in itself violates Article 13 of the American Convention, since there is no imperative social interest that justifies, it is unnecessary and disproportionate, and can also constitute a means of indirect censorship given its intimidating and inhibiting effect on critical expressions, preventing debate on issues of interest to society.

This different threshold of tolerance towards criticism that falls to those who occupy or aspire to occupy public positions is based on the nature of the functions they fulfill and on the fact that they have voluntarily exposed themselves to a more demanding scrutiny, for which reason their activities leave the domain of the private sphere to be inserted in the sphere of public debate. This does not imply that they cannot be judicially protected in terms of their honor when it is subject to unjustified attacks, but they must be so in accordance with the principles of democratic pluralism, and through mechanisms that do not have the potential to generate inhibition or self-censorship, as understood by the Inter-American Court of Human Rights. Likewise, it has been stressed that there are other less restrictive means for people involved in matters of public interest to defend their reputation against attacks that they consider unfounded; due to their authority, they have more possibilities and access to channels to give explanations or counteract critical expressions.

The SRFOE and the SRESCER also recall that academic freedom is a fundamental element for the strengthening of democracy and includes the freedom of people to express their ideas and opinions without discrimination or fear of repression from the State or any other institution. The Commission has highlighted the transcendental role that universities have as centers for critical thinking and the exchange of ideas. In this line, the United Nations Committee on Economic, Social and Cultural Rights has stated that "the right to education can only be enjoyed if it is accompanied by the academic freedom of the faculty and students." Likewise, the SRESCER highlights that said Committee has recognized that there are a series of pressures -of a political and other nature- on the higher education faculty, which makes it necessary to provide reinforced protection to their labor and union rights, as well as to academic freedom, to enjoy all internationally recognized human rights, without discrimination or fear of reprisals.

In accordance with the foregoing considerations, the Offices of the Special Rapporteurs call on the State of Brazil to refrain from using judicial mechanisms that may violate the right to freedom of expression of the actors of the academic community, fostering a climate of self-censorship; and urge the authorities to promote and respect academic freedom and university autonomy.

The Office of the Special Rapporteur for Freedom of Expression is an office created by the Inter-American Commission on Human Rights (IACHR) to encourage the hemispheric defense of the right to freedom of thought and expression, considering its fundamental role in the consolidation and development of the democratic system.

The SRESCER is an autonomous Office of the IACHR, specially created to support the Commission in fulfilling its mandate to promote and protect economic, social, cultural, and environmental rights in the Americas.