Case Summary and Outcome

A Brazilian court dismissed a lawsuit seeking compensation for moral damages against a podcast and its former host. During an episode, the host mentioned the possibility of creating a Nazi party in Brazil and the right to be “anti-Jewish”. A number of Jewish individuals filed a lawsuit alleging that the comments offended all people, but especially the Jewish community. They sought compensation for moral damages or a public retraction, and that the podcast broadcast educational and historically accurate information about Nazism and the Holocaust. The lower court found that although the discourse conveyed in the podcast was clearly illegal, the complainants did not demonstrate how the comments directly affected them, which is a requirement to establish the duty to compensate, and that the actions taken by the podcast after the incident were appropriate given the seriousness of the situation. The appellate court confirmed this decision, noting that while the statements were deemed discriminatory and unlawful, the complainants had failed to demonstrate direct and individual harm to justify compensation. The Court also noted that there were ongoing investigations by the Public Prosecutor’s Office regarding potential collective moral harm against the Jewish community.

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Facts

On February 7, 2022, a Brazilian podcaster, Bruno Aiub, known as Monark and the then-host of the “Flow” hosted a podcast 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”.

These 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. Furthermore, at that time, “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.

Artur Pimenta de Oliveira Filho, Eliseu Kadesh Rosa Assunção, and Edson Bendanan Cutrim Mendanha filed a lawsuit against Monark and the Flow Podcast seeking compensation for moral damages, on the grounds that Monark’s comments offend the honor and dignity of all people, but especially the Jewish community. Alternatively, they requested that Monark publicly retract his statements, acknowledge the illegality of his remarks, and explain to his followers and audience that spreading Nazi ideas and ideologies is not a legitimate exercise of freedom of expression. They also asked that the Flow Podcast broadcast educational and historically accurate information about Nazism and the Holocaust.

On August 19, 2022, during a conciliation hearing, Pimenta de Oliveira Filho and the others complainants reached a partial agreement with Monark who agreed to participate in a live broadcast organized by the complainants on social media. Notwithstanding this agreement, the lawsuit against the Flow Podcast continued.

On November 19, 2022, Judge Clarissa Menezes Vaz Masili of the 4th Civil Court of Taguatinga, an administrative region of the Federal District of Brazil, delivered the first-instance decision. Since Monark had already reached an agreement with the Pimenta de Oliveira Filho and the other complainants, the central issue for the Court was whether the Flow Podcast was obligated to pay compensation for moral damages allegedly resulting from statements made during its debate program.

Judge Masili found that, although the illegality of the content broadcast by the podcast was clear, Pimenta de Oliveira and the other complainants did not demonstrate how Monark’s comments directly affected them – a requirement under Brazilian law to establish the duty to compensate.

Judge Masili stated that “the statements disseminated through the media by the defendant society [Flow Podcast] in the face of humanity’s history that permeated the ideology of the Nazi Party notably during World War II, qualify as discriminatory and, therefore, criminal, under Law No. 7,716/1989” [p. 2-3]. She added that, under Nazi ideology, adherents of this way of thinking, “sought and committed acts of extermination against ethnic groups, notably Jews” [p. 2-3]. Accordingly, Judge Masili held that “the unlawfulness of advocating for a Nazi party and the practice of anti-Jewish acts qualifies as unlawful, even from a criminal standpoint”, and that, as the right to freedom of expression, provided for in Article 5, IV, of the Federal Constitution of 1988, is subject to limitations imposed by other fundamental rights, the illicit conduct in this case was unquestionable. [pp. 2-3]

However, as Pimenta de Oliveira and the other complainants sought compensation for moral damages, the request was denied due to the need to demonstrate the offense to their personality rights. Judge Masili explained that “the complainants did not clarify how, due to personal and directly related issues, their personality rights were affected by the statements in question”. [p. 3] She added that “there was not even clarification whether the alleged concrete fears arising from the reported growth of neo-Nazi groups in Brazil would have any direct impact on ELISEU, ARTUR, or EDSON, whether due to their ethnic origin, the location of the alleged growth and anti-Semitic actions, or any other personal condition that would directly affect them in this context”. [p. 3]

Accordingly, as the Judge did not find direct and immediate damage caused to each of the complainants because of the podcast’s illicit conduct, she denied the requests.

Regarding the alternative request for the Flow Podcast to broadcast educational and historically accurate information about Nazism and the Holocaust, Judge Masili noted that, following the incident, the podcast issued a clarification note and an open letter to the public, and disassociated itself from Monark as the host. Judge Masili noted that “in other episodes of the same program, held shortly thereafter, a Jewish professor and academic was invited and [spoke] to clarify historical facts about Nazism” and that “[i]n one of such episodes, moreover, the professor in question expressly opposed the advocacy of a Nazi party and any anti-Semitic acts, as well as provided information about Nazism throughout human history”. [pp. 3-4]

Concluding that the actions taken by the Flow Podcast after the incident addressed the complainants’ alternative claim and were appropriate given the seriousness of the situation, Judge Masili also denied the alternative request.

Pimenta de Oliveira and the other complainants appealed the decision.

Articles 186 and 927 of the Brazilian Civil Code address civil liability and the necessary requirements for establishing the duty to compensate. Article 5, IV and X of the Brazilian Federal Constitution protect the rights to freedom of expression, press and information, and personality rights. Article 82 of the Consumer Defense Code defines what constitutes collective, diffuse, and social moral damage in relation to individual damage.

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Decision Overview

Judge Jose Firmo Reis Soub, delivered a unanimous decision (followed by Judges Carmen Bittencourt and Diaulas Costa Ribeiro) of the 8th Civil Division of the Court of Justice of the Federal District and Territories. The central issue for the Court was whether the necessary elements were present for requiring that the Flow Podcast compensate Pimenta de Oliveira and the other complainants.

Pimenta de Oliveira and the other complainants argued that, being Jewish, the statements made by Monark and disseminated by the Flow Podcast qualify as discriminatory and therefore criminal, affecting their honor.

The Court identified two elements for consideration: “the free dissemination of thought versus those who do not agree with it”. [pp.6-7] It emphasized that Article 5, IV of the Brazilian Constitution provides that freedom of expression, freedom of the press, and information about matters of public interest are fundamental rights that are essential to democracy, “from which other equally important rights derive, such as the right to intellectual, artistic, scientific, and communication expression (Article 5 IX)”. [pp. 6-7] The Court stressed that the Constitution also protects personality rights, “including the right to image, honor, and dignity of the human person, as stated in Article 5 X”. [pp. 6-7]

Accordingly, under the premise that there are no absolute rights, and “in the event of a collision of principles of the same constitutional hierarchy”, the Court found that judicial balancing is necessary. [p. 7]

Citing a case decided by the Superior Court of Justice regarding the balancing between the right to freedom of expression and personality rights in cases of news dissemination by the press (REsp 1473393/SP, dated October 4, 2016), the Court noted that the complainants, in the present case, were not seeking an individual subjective right; they sought compensation for moral damages resulting from an event that, according to them, affected the entire Jewish community and consequently themselves, as part of that group. However, under Brazilian law, especially Article 82 of the Consumer Defense Code, only the Public Prosecutor’s Office, the Public Defender’s Office, and associations with institutional purposes aimed at defending consumer rights can file collective actions. In this context, the Court concluded that since the present case concerns collective, diffuse, or social moral damage, the complainants could not have filed this lawsuit. [p. 9]

The Court accepted that the complainants’ request aligns with the rightful expectation of everyone regarding the rejection of Nazi apologia but found that seeking judicial redress is only possible for those who have been directly and personally affected by the offense, which was not evident in the present case. [p. 9] It explained that “the alleged damages to the sphere of personality rights pointed out in the initial complaint undoubtedly affect a collective” but stressed that “they have failed to demonstrate any direct and individual harm suffered due to an illegitimate or criminal act by the defendant company that would be eligible for moral compensation”. [p. 9]

The Court noted that the legitimate authority for collective action, the Public Prosecutor’s Office of São Paulo, was investigating whether there had been collective, diffuse, or social moral harm against the Jewish community, as well as any potential crime eligible for criminal prosecution. [p. 10]

Accordingly, the Court confirmed the first instance decision and denied the complaints’ requests.

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