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A Brazilian appeal court has forbidden an agricultural engineer critical of the construction of a high-rise apartment complex from speaking out on the streets and on the Internet against the project.
Freedom of expression advocates have warned that the decision breaks with international legal standards.
The São Paulo Court of Justice shot down attorney Ricardo Fraga de Oliveira's appeal on May 15, 2013 for a temporary injunction imposed on him on March 6, 2013 to be suspended, which he argued restricted his freedom of expression.
The injunction [en] stemmed from a case filed against Oliveira by Mofarrej Vila Mariana SPE Real Estate Developments, the construction company behind the high-rise apartment complex. The company accused Oliveira of slander, arguing that he was driving possible apartment buyers away through his protests. Oliveira leads a movement called O Outro Lado do Muro – Intervenção Coletiva (The Other Side of the Wall – Collective Intervention) which has campaigned against the project saying it would damage a river on the site called Boa Vista and would increase the already chaotic traffic flowing through the neighborhood.The court's decision reaffirms the previous court's ruling with a slight change: Oliveira must take down any content that refers to the construction company, Mofarrej Vila Mariana SPE Real Estate Developments, from his Facebook page instead of taking down the entire page. He is also now prohibited from demonstrating within less than a block away from the site of the construction project instead of the previous one kilometer.
In Oliveira's appeal (or “agravo de instrumento”, in Portuguese), he reflected on what is at stake:
Em um país com histórico ditatorial, deve-se analisar com extraordinária cautela um caso que, se não for compreendido com a devida sensibilidade jurídico-social, poderá formar um precedente jurisprudencial gravemente periclitante ao exercício de uma Democracia conquistada após anos de censura e opressão.
In a country with a dictatorial legacy, a case which, if not understood with proper legal and social touches, can create a jurisprudence that is dangerous to the exercise of democratic rights, won after years of censorship and oppression, should be analysed with extraordinary caution.
The YouTube channel TVassim Vila Mariana recorded the judgment of his appeal. In the footage, while listening to the final decision, Oliveira is moved to tears. Immediately after, he gets up and stands opposite the judge beside other people who gag themselves in protest:
Non-governmental organization Artigo 19, which specializes in the right to freedom of expression, has followed the case closely and posts court documents related to the case on its website. The NGO explained that the decision made by the São Paulo tribunal was not based on the article 19 of the International Covenant on Civil and Political Rights [en], which defines only three situations in which someone can have their freedom of expression restricted: (i) to enforce a clearly written law, (ii) to respect the rights or reputation of others and (iii) to protect national security, public order or public morals, and concludes:
Caso o teste das três partes tivesse sido observado, a restrição contra a liberdade de Ricardo não teria sido concedida visto que tal restrição não se encontra prevista em lei e o interesse econômico de comercialização dos lotes pela empresa não está acima do interesse público concretizado na garantia da liberdade coletiva de manifestação.
If the three-part test had been observed, the restriction against Ricardo’s freedom would not have been allowed, for such restriction is not provided by the law and the business interest with regard to the company and the lots cannot be considered above the public interest embodied by the guarantee of collective freedom to demonstrate.
After Oliveira's Facebook page “O Outro Lado do Muro” (The Other Side of the Wall) was taken down following the court order, another social movement called “Meu Nome Não é Fraga” (My Name is not Fraga, in reference to Ricardo Fraga de Oliveira) sprung up on the social network to post content about the case. Another initiative on Facebook called O lado de cá do muro: o do cidadão da Vila Mariana (The other side of the wall: the one in favour of the citizen of Vila Mariana) was also created with the aim to push back against the construction company.
Bruno Costa, the group administrator, analyzed the situation:
Quando digo que os empreiteiros são espertos digo porque quando fizeram esta ação sabiam que tal censura nos deixariam revoltados e que protestaríamos. Com toda razão. A censura realmente é ABOMINÁVEL. Ok. Mas sabiam também que o foco central se perderia e que aumentaríamos nossos esforços contra a censura. O fato é que se não fizermos algo muito rapidamente não haverá mais como interromper aquela insanidade que é o Boulevard Ibirapuera
When I say that the contractors are clever, I say so because when they called for the injunction they knew that such censorship would make us feel angry and we would protest. No doubt. Censorship is really ABOMINABLE. OK. But they also knew that the central focus would be lost and that we would center our efforts against the censorship. The fact is that if we do not do something quickly, there will be no way to stop that insanity that is the Boulevard Ibirapuera [the name of the residential towers].
A petition, which gathered 5,000 signatures asking for a reappraisal of Mofarrej’s project as well as a manifesto to gather support for the freedom of expression of the group were launched.
As to the press, newspaper Estadão reported the case, and the story was shared on Facebook 5,500 times, where one reader named Davi Oliveira made the following comment:
A ditadura nunca foi embora, antes era a militar.. hoje é a de quem tem dinheiro..
Nunca seremos livres, eterna colonia.
The dictatorship has never gone away, previously it was a military one.. these days it is that of who has money.. We shall never be free, a colony forever.
‘Fighting for suitable urban projects’
Oliveira, who holds a degree in law and has a master of science in public health (environmental planning), created the movement O Outro Lado do Muro – Intervenção Coletiva (The Other Side of the Wall – Collective Intervention) with the aim to encourage residents of the Vila Mariana neighborhood to make use of art to voice out their opinion about what should be done in the urban space.
The “wall” in the movement's name refers to the wall that surrounds the 9.356 m² plot where, until 2004, an old factory named Cera Record stood. In an email interview with Global Voices, Oliveira explains that the “demolition [of the building] took place overnight, without any warning to the community”. The empty site came to be considered as a public space by the community, but was obtained by the Mofarrej company, however, where they began construction of three apartment tower blocks with 27 floors each and 654 parking spaces.
The movement under Oliveira’s leadership started in June 2011 and gained momentum over many Saturday's meetings, according to a piece written by Denise Delfim for the local paper “Pedaço da Vila”. The art displayed on the wall can be seen in the YouTube video below:
In addition to criticism against the apartment construction, another major aim of the movement is to engage the residents of São Paulo in a reflection “about the way the city has been appropriated, the high-rise building model which is imposed on it […].” As Oliveira said to the G1 news website:
O nome é Outro Lado do Muro porque este outro lado é a rua. E estamos na rua mostrando esta questão. Estamos brigando por projetos urbanísticos com características mais adequadas a cada região da cidade
The name is “The Other Side of the Wall” because this other side is on the streets. And we are on the streets pointing out this issue. We are fighting for suitable urban projects with features that can better fit each city area.
Regarding any chance of stopping the construction works and of restoring the site to Vila Mariana neighborhood, Oliveira affirmed to Global Voices that:
a única chance é o Ministério Público propor uma Ação Civil Pública em face das irregularidades ocorridas nos processo de licenciamento. Existe um Inquérito Civil instaurado no MP e em mãos do Promotor Vicente Malaquias da Promotoria de Justiça de Habitação e Urbanismo.
the only chance is if the public prosecutor's office proposes a Public Civil Action in light of the irregularities that took place during the licensing process. There is a Civil Inquiry instituted in the prosecutor's office and on the hands of the public prosecutor Vicente Malaquias of the Prosecutor’s Office of Housing and Urbanism.
Meanwhile, the movement has influenced residents of other areas in the city of São Paulo. For example, the Pinheiros neighborhood, where on March 26, 2013, residents got together in Benedito Calixto Square to discuss, in a creative way, the urban changes and the future they want for their community.