Case Summary and Outcome

In a preliminary decision, a Brazilian court ordered the removal of a podcast episode from digital platforms after the host made comments suggesting the possibility of creating a Nazi party in Brazil and the right to be “anti-Jewish”. The court’s decision to remove the episode was based on Brazilian laws prohibiting the dissemination of Nazi-related symbols and ideologies, emphasizing the importance of upholding democratic principles and respect for fundamental rights.

Facts

On February 7, 2022, a Brazilian podcaster, Bruno Aiub, known as Monark and the then-host of the “Flow” podcast hosted an episode with parliamentarians Tábata Amaral (Brazilian Socialist Party – PSB) and Kim Kataguiri (Brazilian Union Party). During the episode, Monark made the following statements: “[t]he radical left has much more space than the radical right, in my opinion. Both should have space, in my opinion. I’m crazier than all of you. I think the Nazi should have the Nazi party recognized by law”; and “[p]eople don’t have the right to be idiots?”. Tabata Amaral responded, stating that advocating for Nazism puts an entire population at risk, to which Monark responded, “[h]ow so? When it’s a minority, it doesn’t?” and “[i]f a guy wants to be anti-Jewish, I think he should have the right to be”.

The statements sparked significant debate regarding the limits of freedom of expression and the tolerance of hateful ideologies, particularly noteworthy in Brazil where promoting Nazism is a criminal offense. At that time, the “Flow” podcast was one of the most popular in Brazil, according to the Deezer platform, and ranked among the top 5 most listened to on Spotify in 2021. On YouTube, the Flow Podcast channel currently has over 5 million subscribers.

The Federação Israelita do Rio de Janeiro (FIERJ) filed a lawsuit to have the episode removed from all digital platforms, on the grounds that Monark’s comments contradicted basic principles of the Constitution, such as the promotion of the well-being of all without prejudice to origin, race, sex, color, age, and any other forms of discrimination.

Article 20, caput, of Law No. 7,716/1989 stipulates that racism is a crime in Brazil. Additionally, Article 17 of the Constitution and Law No. 9,096/1995 establish that political parties must be created in accordance with democracy and fundamental rights. Article 5, XLII, of the Constitution states that “the practice of racism is a non-bailable crime not subject to the statute of limitations and is punishable by imprisonment.”

Decision Overview

Judge Débora Maria Barbosa Sarmento, of the 7th Civil Court of Rio de Janeiro, delivered the preliminary decision.

The central issue for the Court was whether expressing an opinion advocating for the possibility of creating a Nazi party in Brazil was permissible.

With reference to Article 5, XLII and Article 20 of Law No. 7,716/1989, Judge Sarmento found that the dissemination of symbols, ornaments, emblems, badges, or propaganda related to Nazism is a crime stipulated in the Constitution as non-bailable and not subject to statute of limitations. [p. 67] The Judge added that the legislation regulating the creation of political parties determines that democracy and respect for fundamental rights must be observed, “thus prohibiting the existence of party groups contrary to these values”. [p. 67]

Accordingly, Judge Sarmento held that, since the creation of a political party in Brazil that aims to defend values contrary to the law is prohibited, and considering that Nazism “preaches racial supremacy and the extermination of groups it considers ‘inferior’, having caused the death of millions of innocent Jews in Europe”, Monark’s remarks constituted unlawful speech. [p. 67]

Judge Sarmento stated that Monark “cannot claim a supposed right to freedom of expression, which does not override the rights of respect, dignity, and consideration for the human being”, and emphasized that freedom of expression has constitutional limits, including the prohibition of crimes of discrimination and prejudice. [p. 68]

The Judge ordered that Monark’s statements on the Flow Podcast be removed from all social media platforms, under penalty of a daily fine of R$ 10,000, and that Monark refrain from including the statements on any of their social media profiles, through any direct or indirect means, and from publishing them on audio-reaching platforms such as Spotify, under penalty of a fine of R$ 10,000.00 for each improper airing. [p. 68]

The case is ongoing, and the defendants have not yet issued any statements.