The use of drones and hidden cameras in investigative journalism: reinforcing democracy or violating privacy rights?

Investigative journalism has an important role in modern democracies. The use of drones and hidden cameras/microphones is inherent to this type of journalism and has disrupted the way news content is produced. Journalistic activity should be transparent by default; however, these so-called “clandestine” or “surreptitious” methods are essential to provide society with public interest information and to ensure journalists’ physical integrity. These tools are especially relevant when covering wars and other high-risk situations, such as illicit activities.

Although there is a lack of specific privacy-related regulation in Brazil on the use of such devices, besides the ones enacted by the Civil National Aviation Agency addressing technical and security issues, some constitutional principles apply.

Brazilian courts analyze the matter on a case-by-case basis, by weighing constitutional principles of right to information and freedom of expression on one side, and privacy on the other. For this reason, checking in judicial precedents on the matter is a useful guidance for journalists and producers.

As a general rule, the use of hidden cameras and microphones to produce news stories has been legitimated. For instance, in 2013, a state court of appeal ruled a case involving the use of a hidden camera in a journalistic piece and acknowledged that the case was about the “regular exercise of the right to information, proper of free societies, therefore, individuals eventually portrayed in news coverages [addressing public interest] must accept any inconvenience eventually experienced as a modest price to be paid for the blessings of democracy”.

Other elements have also been considered by the Courts, such as (i) the public interest on the information disclosed; (ii) if it would be difficult or impossible to gather the information without the use of a hidden camera or microphone; (iii) if a diligent research about the occurrence of the alleged illicit/controversial act being covered was conducted by the production (or if the production relied on the testimony of reliable sources); (iv) if the news outlet gave the individual in question the opportunity to refute the allegations against him/her. Furthermore, the coverage must not abuse the right to information and must refrain from exposing unnecessary elements when reporting the facts. In case of violation of personality rights, wrongdoers may be condemned to indemnify the victim.

There is still another constitutional principle that may be evoked by claimants involving the use of drones: the inviolability of the domicile. The Criminal Law states that trespassing one’s domicile or workplace may subject the wrongdoer to 1 (one) month to 2 (two) years of detention.

Brazilian Courts have not ruled cases involving the use of drones for journalistic purposes yet. However, in 2021, a state court of appeal ruled a case in which the plaintiff alleged that journalists had infringed the inviolability of the domicile’s principle. The court found that, if the law limits governmental intrusion and control on private life and property – and the police is allowed to enter someone’s domicile only when a criminal has been caught in the act of committing an offence (flagrante delicto) – it would be contradictory to allow the entrance of press in someone’s home to cover a crime, even considering the public interest in question. Still according to the ruling, such prohibition does not prevent the news coverage of the facts. However, "violating the domicile, capturing images and disclosing details of the private and intimate life of the victim, which inflicts additional unnecessary and undue suffering to family members affected by the crime, is not allowed".

Although judicial precedents have been legitimating the use of hidden cameras, and will probably allow the use of drones for journalistic purposes, the limits of such use are still blurred. In view of this, an assessment to verify the existence of mitigating risk factors is advisable in each case, so that the journalist and or the media outlet are not affected by legal consequences related to an eventual violation of individual’s privacy rights.

Special thanks to Ana Clara Camilo for contributing to the article.

L&S Authors

Camila Mariotto

Camila Mariotto

Associate
Simone Lahorgue Nunes

Simone Lahorgue Nunes

Partner

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