May 3, 2021

A judge in Brazil issued a preliminary ruling on Apr. 23 requiring fact-checking organization Aos Fatos to remove references to the magazine Revista Oeste in two of its fact checks as well as ratings of the magazine’s posts on Facebook. Revista Oeste argued in court filings that the fact checks hurt it financially, and called the fact checks a “modern form of censorship.”

“We don’t know if this is a consequence of our fact checks,” said Aos Fatos executive director and co-founder Tai Nalon. “We don’t have the power to decide how and when to defund such publishers.”

Aos Fatos is tasked with reviewing flagged content for potential misinformation as a member of Facebook’s Third-Party Fact-Checking program. Those posts may be removed or have their distribution limited, but those decisions are made entirely by Facebook rather than the fact-checkers. (Full Disclosure: Fact-checking organizations are required to be signatories to the International Fact-Checking Network’s Code of Principles to be eligible to partner with Facebook).

In a statement responding to the ruling, Aos Fatos’ lawyer, Flávia Penido, called the ruling “dubious” and said the judge ordering Aos Fatos to censor its work effectively puts the government in the role of a publisher, which she said, “happened in other dark times in the country.”

The order to remove the references to Revista Oeste in the fact checks came swiftly after the case was filed on Apr. 22. Brazilian law enables publishers to have content stricken immediately after a complaint is filed without an opportunity for a rebuttal from fact-checkers. For now, Aos Fatos has removed references to the magazine in both fact checks to avoid paying a 1,000 Brazilian real (roughly $185) per day fine. However, Nalon expressed confidence her organization would win its appeal.

“I believe this was a mistake made by a State judge that is not familiar with freedom of press and freedom of expression issues,” she said. Article 220 of the Brazilian constitution prohibits “any provision which may represent a hindrance to full freedom of press in any medium of social communication.” Nalon believes this ruling violates that provision.

This is not the only legal challenge Aos Fatos or even other Brazilian fact-checking organizations are facing at the moment. Aos Fatos has five cases pending and fellow Brazilian fact-checking organizations Agência Lupa and Estadão Verifica are defendants along with Facebook in a separate case. Nalon said these legal challenges are a worrying trend she fears could hamper the work of Brazilian fact-checkers going into the 2022 presidential election cycle.

“One of the consequences might be a weakening of relevant efforts to combat misinformation in Brazil due to the high financial cost that dealing with these lawsuits usually generates,” Nalon said. Natália Leal, content director at Agência Lupa, echoed Nalon’s concerns.

“People who are prosecuting us are saying it is because we are censoring them in their free speech, but this is not what we are doing,” Leal said “We are doing our work with a transparent methodology and objective criteria. This is journalism. It’s not just a ‘point of view’ or a ‘different opinion.’ What they call ‘free speech’ is misinformation. Simple as that.”

This is not the first time fact-checkers in Brazil have been harassed with accusations of perceived censorship. In 2018, a 299-page PDF circulated on WhatsApp accusing fact-checkers of being leftists and censors for their work with Facebook. Several fact-checkers received death threats as part of multiple waves of online harassment.

Heading into 2022, Brazilian fact-checkers can avail themselves of the Fact-Checkers Legal Support Initiative — a collaboration between the IFCN, Media Defense, and the Reporters’ Committee for Freedom of the Press that provides pro bono legal support to fact-checking organizations.

“They’ve also hosted webinars and published country guides, including for Brazil, to provide fact-checkers in the country with an overview of relevant laws and policies,” a Facebook spokesperson wrote in an emailed statement to the IFCN.  “Facebook recognizes the importance of an independent and strong fact-checking ecosystem as one of the main pillars in the fight against misinformation. That’s why, through our partnership with 80 third party fact checkers worldwide, we have been supporting this critical work.”

Nalon said her organization is in talks with the FLSI, and hopes a legal victory will stave off future suits from disgruntled publishers.

“I truly hope it is only a matter of time before many publishers understand that fact-checkers are here to stay, and that the right to publish misinformation is ethically indefensible,” Nalon said.

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Harrison Mantas is a reporter for the International Fact-Checking Network covering the wide world of misinformation. He previously worked in Arizona and Washington D.C. for…
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