Case Summary and Outcome

The Superior Court of Justice of Brazil ruled that heirs are not entitled to compensation arising from the publication of a satirical magazine, which mockingly mentioned their ancestor. A satirical magazine had published an article with satirical references to the ancestor’s castle and profession, and his heirs sought damages for the moral harm caused. The Superior Court agreed with two lower courts and dismissed the application, holding that determining the nature of the humor is beyond the Court’s jurisdiction, and that the satirical article fell within the bounds of “humorous practice”.

Facts

In July 2000, the Brazilian satirical magazine “Bundas“, published by Pererê Publisher Magazines and Books Ltd., released an humorous critique of another magazine “Caras” (in English, “Faces”) which was well-known for publicizing intimate aspects of “celebrities” and individuals with a luxurious lifestyle. As “Caras” featured a castle, “Bundas” also presented one — the Castle of Itaipava, constructed by Baron Smith de Vasconcelos. The castle in “Bundas” was humorously termed the “Butt Castle” and given the Baron’s ownership of a toilet paper factory, a jest emerged, dubbing him the “Baron of Crap”. These elements were comically explored in the article.

Sometime in the early 2000s, Eugênia Cecília Smith de Vasconcellos Aragão and Maria Cecília Smith de Vasconcellos Aragão, heirs of the Baron, filed a compensation lawsuit against the magazine, arguing that associating their ancestor’s memory with the terms “Butt Castle” and “Baron of Crap” caused moral harm. They submitted that moral damages should be compensated even when committed in the exercise of freedom of information, claiming that the pain suffered by the Baron’s descendants due to the article was evident.

The lower court denied the heirs’ request, holding that it is “inadmissible to prevent irony, jokes, jesting, animus jocandi, inherent to artistic creation, with the sole purpose of making people laugh and not to denigrate, discredit, or sully the image of anyone.” [p. 2]

The heirs appealed to the Court of Justice of Rio de Janeiro (TJ/RJ). On May 5, 2004, Judge Severiano Aragão concurred with the lower court. He found that “[…] in a country like ours, we should encourage critics, creators in all fields, avoiding any inhibitory censorship. Intellectual people must coexist with the magical world of the art of humorists, cartoonists, critics, who, in the purity of their work (and social function), STRIVE FOR THE IMPROVEMENT OF SOCIETY, pointing out distortions, knowing that abuses must be criticized, to avoid trivializing holocausts (in all sectors).” [p. 3] Citing the Brazilian Constitution, art. 5, IV, IX, and XIV, he added that annoyance can be expressed through the inverse right of criticism, in the literary realm, without violating freedoms of thought, press, information, disclosure, satire, and critique. The Court held that there was no injury to personal dignity or material harm through the reference to the Castle of Itaipava, while noting that moral damage should not be trivialized.

The heirs appealed to the Superior Court of Justice.

Decision Overview

Justice Nancy Andrighi delivered the majority decision of the Third Chamber of the Superior Court of Justice. Justice Castro Filho delivered a dissenting opinion. The central issue for the Court was to determine whether the ironic and jokey reference to the Baron by the satirical magazine was sufficient to cause moral damages.

Justice Andrighi noted that to evaluate the matter it was necessary to analyze not only the expressions deemed offensive but also the context and style of the magazine. She reiterated that the magazine is explicitly satirical, considering the editorial proposal and the comparison with another famous magazine that focuses on exploring the lives of celebrities. Quoting the Latin phrase “Ridendo castigat mores” (“one corrects customs by laughing at them”), Justice Andrighi added that “[t]he ‘Bundas’ magazine clearly had the editorial purpose of pointing out the excesses of a new social phenomenon that emerged in the mid-last decade of the past century, which materialized in the explosion of public interest regarding the lives of wealthy or famous individuals, both nationally and internationally.” [p. 5] Justice Andrighi explained that, in these circumstances, it would have been expected that the satire feature a castle when the mocked publication also claims to possess one, “but it is essential to note that the castle built by the predecessors of the [heirs] was merely the instrument of the joke and not the ultimate target of ridicule. The comparison aims to demonstrate how laughable – in the view of the writers – is the editorial proposal of the other magazine.” [p. 5]

Justice Andrighi found that irony is present not only in the nickname given to the Baron but also in the excessive praise directed at the castle. She said that “practiced humor, especially when praising to criticize, can only be seen as aimed at pointing out the incongruities of a lifestyle that does not refer, in any way, to Baron Smith de Vasconcellos but to other people who ‘show their faces’ – to use an enlightening pun – in the magazine that is effectively the explicit target of the jest.” [pp. 5-6] She added that the heirs themselves recognized the origin of the association of the Baron’s name with the term “crap”, given the ownership of the toilet paper factory: “if, by coincidence, the builder of the castle indeed made his fortune from a toilet paper factory, an undisputed fact in the records, the situation reaches the point of taking the form of a true ‘ready-made joke’, given the chosen name for the satirical magazine – a joke not with the Baron himself, it must be emphasized, but with a certain cultural trend, which is explicitly satirized once again in pages 84/85 of the records, where another article from the magazine, blatantly copying the literary style and graphic formatting of ‘Caras’ magazine, is shown to portray the daily life of a person without the slightest ‘glamour.’” [p. 6]

Justice Andrighi stressed that it is not for the Court to comment on the quality of humor employed by the magazine: “it is not within the purview of this body to engage in critical analyses of the talent of the humorists involved; the judicial review should be limited to determining whether there was or was not an offense to the moral rights of the individuals involved by the publication”. [p. 7] She added that the Court should not determine whether the humor is “intelligent” or “popular” because this classification “discriminates against humorous activity not based on itself but in relation to the audience that consumes it, suggesting that all cultural products intended for the less educated portion of the population are necessarily pejorative, vulgar, abject when analyzed by individuals with ‘higher’ intellectual backgrounds – and, solely for that reason, would already give rise to moral compensation when involving one of these individuals, a category in which the [heirs] expressly include themselves in the initial pleading of this case.” [pp. 7-8] She concluded by stating that this examination should be left to specialized sectors of the press, which grant awards to artists based on the content of their works. [p. 8]

Justice Andrighi held that there was no moral harm. She found that, because the magazine is explicitly satirical, and the publication is a humorous practice without injurious potential, “the conduct does not bear the necessary injurious potential to cause the pain that the [heirs] seek to have recognized, lacking the slightest seriousness in the alleged offense committed, with the text falling within the limits of what is understood as humorous practice and in a vehicle intended for such.” [p. 7] She added that the article’s aim was not to personally criticize the memory of the Baron, the predecessor of the hiers, but to critique the customs of the time and the approach of the other magazine (“Caras”) and so “there was nothing beyond a general critique of customs in the article; there was no personal attack on the memory of the Baron, as the allegedly injurious expression belongs to the public domain and was used merely in an allegorical sense, in total coherence with the purposes of the publication.” [p. 8]

In the dissenting opinion, Justice Castro Filho would have found that there was moral harm to the heirs. Unlike Justice Andrighi, he would have found that artistic humor creation “is acceptable, especially when it comes to fine, elegant irony, as many of our artists and writers know how to do,” but that “[w]hat cannot be allowed, as it is intolerable, is the rude, offensive, and vulgarizing humor that, even if not directly attacking honor, offends the dignity of individuals, causing embarrassment, suffering, and pain.” [p. 2] of the dissenting opinion] Justice Castro Filho would have found an offence to the honor of the heirs and their ancestor: “starting from a lawful activity of an honorable person – Baron Jayme Luiz Smith de Vasconcelos – who was a paper manufacturer, including toilet paper, to nickname him for this reason as the ‘Baron of Crap’ and, in an association of ideas, to dub his imposing castle as the ‘Butt Castle’”. [p. 2] He criticized the magazine for humorously publishing a photo of the castle, which would have distorted “in a grotesque way, the image of a beautiful building, famous beyond borders, with the name Itaipava Castle’ whose project, in the early 1920s, had the participation of an architect very dear to all of us, who, years later, became internationally renowned for the urban conception of Brasília: Dr. Lúcio Costa.” [p. 2]

Justice Castro Filho noted that the castle, which was once called the “Cinderella Castle”, was put up for sale after the publication of the article and had suffered devaluation, and said that “[a]fter all, one thing is, for example, to have a wedding reception in a ‘Cinderella Castle’, another is to have it in a ‘Butt Castle’.” [pp. 2-3] He identified moral harm because the magazine offended the memory of Baron de Vasconcelos and the family’s past, and that “even if there was no intention to denigrate the publication, with the distortion of the Baron’s nobility title, in a magazine with a circulation of 160,000 copies and distributed throughout Brazil, it represents subjecting the family to ridicule on a national level.” [p. 3]

Accordingly, Justice Castro Filho would have accepted the appeal and ordered the magazine to pay compensation for moral damages in the amount of R$30,000.00 (approximately $6,000.00 at the time).