By Gustavo Martins de Almeida
There is great concern in the Brazilian publishing industry regarding legal provisions that may hinder biographies from being published in the country. This article seeks to present a brief overview on the issue and suggest a few possible solutions to be implemented in the near future.
The Brazilian Civil Code rules on that in articles 20 and 21, as transcribed below:
Art. 20. Only if authorized, or if needed for legal purposes or to keep public safety, publishing or broadcasting written work, and publishing, broadcasting or exposing one’s image shall be prohibited, the person subject to illegal disclosure of its privacy is entitled to demand compensation for damages to honor, reputation, image.
Sole Paragraph. Should the person whose privacy was violated be deceased or absent, eligible parties to demand compensation are the spouse, ancestors or offspring.
Art. 21. The intimacy of a person is inviolable, and the judge, upon request by the victim, shall resort to the necessary legal procedures to impede or terminate any actions contrary to this norm.
The current Brazilian Constitution, enacted in 1988, explicitly provides on compensation for moral damages, including it among the fundamental rights,and stipulates that intimacy, private life, reputation and the image of the people are inviolable, granting its citizens the right to compensation in case of damages resulting from its violation:
V – the right of reply is ensured, in proportion to the offense, as well as compensation for property or moral damages or for damages to the image;
X – the privacy, private life, honor and image of persons are inviolable, and the right to compensation for property or moral damages resulting from their violation is ensured;
A wave of lawsuits on the grounds of compensation for moral damages based on the aforementioned articles arose, but more often than not, the cases taken to court were just minor arguments, not subject to financial compensation, and therefore were rejected by Brazilian courts.
In 2002, the new Brazilian Civil Code was enacted, and in the section that rules on the personality of the people, the aforementioned articles, 20 and 21, played a key role whenever heirs wanted to prevent biographies, pictures, or even artwork created by their ancestors from going public.
Notably two rulings were favorable to the heirs´ point of view; the biographies of Garrincha, a famous soccer player, and Roberto Carlos, a singer, were forbidden from being published. Both cases, as well as a few others, caused the publishing market to worry, leading publishing houses to join efforts in banning those two Civil Code articles. Thus, two strategies against the referred articles are under way at the moment.
The first one, a Bill drafted by deputy Newton Lima, presented in Congress on 15.02.11 as PL (Draft of a Bill) 393/2011, seeks to include a paragraph to the article stipulating that:
§ 2° The absence of authorization does not impede the disclosure of images, written work and biographical information on the life of a person whose personal, artistic or professional life is relevant to the public or is related to public interest at large.
The second is a direct action of unconstitutionality (ADI 4815), brought before the Brazilian Supreme Court on 05.7.12 by the National Association of Publishers, represented by the attorney Gustavo Binembojm. Such lawsuit seeks to prove articles 20 and 21 of the Brazilian Civil Code unconstitutional, so that it is “banned from the Brazilian body of law the need for consent of the person whose biography was written (or of the family, in case the biography is about a deceased person), and, a fortiori, of the people mentioned in the biography, before publishing or broadcasting biographical, literary or audiovisual work.”
The aforestated direct action of unconstitutionality has a sound background and is under due legal process on the Brazilian Supreme Court. The direct action of unconstitutionality is a more aggressive strategy than that of the Draft of the Bill because it aims to suppress both articles 20 and 21. Now is the right moment for fostering freedom of access to information; hence, a positive result is expected.
Either if the Draft of a Bill set forth by deputy Newton Lima is enacted or if the articles 20 and 21 of the Brazilian Civil Code are found unconstitutional, it is highly likely that legal constraints to publishing biographies in Brazil shall be terminated.
The Brazilian publishing sector is optimistic and looks forward to the rulings on those two strategies. The demand for biographies, which is now curbed, could resume its regular flow and supply reader’s demands.