Publications - 22/03/21

The crime of defamation and slander and the crime of Article 26 of the Brazilian National Security Law

In the past weeks, the Brazilian press has reported the opening of several police investigations to canvass possible crimes of defamation and/or slander against the current President of the country. The targets of these investigations and the crime investigated in them are the subject of intense public debate.

First, digital influencers, lawyers, artists and even ex-presidential candidates are being targeted by these investigations. They are personalities known from having a national public life and who have an active voice in social networks and/or in the press, so it is natural that they themselves make their defense in public.

Second, these investigations depend on a certain coordination of the State to be initiated, insofar as these investigations have been initiated at the request of the Ministry of Justice, as required by article 141, I, with the sole paragraph of article 145, both from the Brazilian Penal Code.

In other words, requests for investigations have taken place in a context that presupposes the existence of a minimum institutional dialogue between the Presidency and the Ministry of Justice and a common agreement that the matter is of interest to the Brazilian State.

Third, the crime investigated in these investigations is the offense provided for in article 26, of the Brazilian National Security Law (“LSN”), which reads as follows: “Slander or defamation of the President of the Republic, that of the Federal Senate, that of the Chamber of Deputies or that of the Supreme Federal Court, imputing to them a fact defined as a crime or offensive to reputation. ”

As we read, the offense of article 26 of Brazilian Security National Law is composed by two figures taken from the chapter of Crimes Against Honor of the Brazilian Penal Code. The first is the act of slander, which consists of imputing to someone a fact defined as a crime, knowing that the imputation is false. The second is defamation, which is the act of imputing a person to a fact that is offensive to reputation.

The existence of the criminalization of statements that may slander or defame third parties is an indication that freedom of expression has legal limitations. The constitutional order itself protects both this freedom and the honor of the people (art. 5, X, of the Brazilian Constitution), and requires a balance between these two values.

The crimes of slander and defamation are provided for in articles 138 and 139, respectively, of the Brazilian Penal Code. The application of article 26 of the LSN, therefore, must observe the legal requirements established for the configuration of these crimes.

The distinction between slander and defamation is that, in the first, it is required that the imputed fact is false, that it is known to be false, and that this false fact is defined as a crime. If the fact is just a minor criminal offense, there is no crime of slander. In the second figure, the fact is not required to be false, just that it is offensive to the reputation.

Both in slander and in defamation, the statement must be specific and assertive. It is unnecessary for the statement to be detailed, but a minimum of concreteness is required. The mere adjectival or attribution of a generic fact should not characterize these crimes, even if it is offensive to honor. Statements made in a conditional, hypothetical, or expressing doubt, do not constitute these offenses.

In regards to the subject requirement for the crime to be committed, is necessary intent and the purpose of offending. That is, in addition to the awareness and will of the typical circumstances of the crime, there is a need for an intention to offend the victim’s reputation, embodied in animus calumniandi in slander, and animus diffamandi in defamation.

In this case, as regards slander, if the offender acts with humor purposes or if the falsity of the fact or authorship is unknown by the offender, there is no crime. In the case of defamation, if there is humor purposes in the act or if there is an intention to inform in the imputation of the narrated fact, there is no crime.

It is in this sense that the jurisprudence of the Supreme Federal Court is moving. As an example, reference is made to Petition 5.735, by the rapporteur of Minister Luiz Fux, which stated “Crimes against honor presuppose that the words attributed to the agent, in addition to proving themselves capable of offending, have been uttered exclusively or mainly for this purpose, under penalty of criminalizing the exercise of criticism, manifestation of the fundamental right to freedom of expression ”. And he added “for the incidence of criminal types referring to slander, defamation and injury, the mere animus narrandi does not constitute the intent essential to the configuration of such crimes”.

The application of article 26 of LSN, therefore, must observe these basic requirements that have been shaped by doctrine and jurisprudence. In order to protect the integrity of criminal law itself, these considerations must be verified at the time of the initiation of police investigations to ascertain the crime provided for in art. 26 of the LSN.

In addition to these general requirements, some aspects must be highlighted. The primary difference between the crime in article 26 of the LSN and its counterparts in the Brazilian Penal Code is that the former typified acts against the honor of special agents (ex. President of the Republic), while the typical forms of the Brazilian Penal Code protect slander and defamation against any individual, including civil servants.

By protecting the honor of special active subjects, LSN sought to protect the individual’s objective honor and the position he or she occupies, in the understanding that offending the honor of that individual could affect (i) territorial integrity and national sovereignty, (ii) the representative and democratic regime, the Federation and the rule of law, and (iii) the leaders of the government.

The need for injury or the potential for normative injury to these three values are provided for in article 1 of the LSN and are criteria for assessing the injury or potential for injury to the conduct for the purposes of configuring any of the crimes of the LSN.

Turning our eyes to concrete situations, opinion texts and critical videos, be they acidic or playful, they should not constitute the crime of article 26, from LSN. In turn, an isolated post on social media with the simple attribution of a generic fact should not, in theory, constitute a crime against national security, such as saying/writing “corrupt politician”. This example would not constitute slander or defamation, because it is too general and because the deponent can actually believe that politician is corrupt, for a number of reasons, as long as they are true.

There is always concern that these statements when posted on the internet, receiving a multiplicity of repetitions and reaching the knowledge of countless people – which invariably occurs when they are made/written by people with thousands of followers – would have the potential to offend the honor of others, although absolutely generic, vague and not specific.

This can be analyzed by two perspectives: the analysis of whether the situation constitutes a crime must reside only in the statement, verbal or written, concretely made by the individual, with the repetition or number of recipients of it being a consequence of the initial act. Another line would be to defend that, even if the statement is vague, its capacity for injury is given depending on the number of individuals who will receive it. The problem with the second line is that any negative idea would be subject to a penalty simply because it can be received by countless people, which cannot be agreed upon.

Finally, it is emphasized that there is an apparent conflict of rules between article 26, of the LSN, and the very existence of crimes of slander or defamation of the Brazilian Penal Code, since that the code still provides for a cause of increase of penalty when the crime against honor is committed against the President of the Republic, which presupposes that they are applicable for the protection of that authority.

In view of this conflict, we see two possibilities: first, there is a crime under article 26, of the LSN, when slander or defamation is carried out according to the position exercised by the head of state, while crimes of slander and defamation of the Brazilian Penal Code remain valid for personal matters of the authority; second, the crimes of slander and defamation against the President were waived for the crimes of LSN.

As concluded by reading the text, there is a vibrant discussion about the application of article 26, of the LSN, and the crimes against honor of the Brazilian Penal Code, which, in truth and ultimately, we hope will be cooled down in the sequence of the months in favor a better and more peaceful national experience.