Case Summary and Outcome

Judge Buzzi of the S.T.J. found that Rafael Bastos Hocman, a TV host of a satire show, was guilty of libel after posing in front of an image of the pregnant Wanessa Godoi Camargo Buaiz and stating with a clear sexual connotation that he would “[e]at her and her baby.”

Facts

On September 19, 2011, Mr. Bastos – known as ‘Rafinha Bastos’ – was co-hosting the TV program CQC – Custe o que Custar, a satiric comedy show. After a report about Mrs. Camargo’s pregnancy was broadcasted,  Mr. Bastos made the sexually explicit statement, “I would eat her and her baby, I do not mind, I do not mind.”

Mrs. Camargo and her husband, Mr. Buaiz, filed a lawsuit against Mr. Bastos for damages resulting from his alleged harmful and malicious speech. The couple added their infant son João Marcos Doutel de Camargo Buaiz as a complainant. The complaint suggested that Mr. Bastos was serious in his sexually explicit comments about Mrs. Camargo. Mr. Bastos allegedly continued to harass the couple on Twitter after hosting CQC.

The lower court found in favor of Mrs. Camargo and her family. Mr. Bastos appealed to the state State Court of São Paulo which denied the appeal. According to the Court, Mr. Bastos abused his Constitutional right to freedom of expression with aggressive language that could not be construed as a joke. The Court found that Mr. Bastos harmed the Plaintiffs’ dignity, violating Articles 1^st, III, 5^th, IX and X and 220, 2^nd Paragraph and 221, I of  the Brazilian Federal Constitution.

Mr. Bastos then appealed to the Superior Court of Justice, insisting that he had not caused harm nor intended to cause harm with his actions. He argued that his comments were mere expressions designed to suit the context of CQC. In response, the Plaintiffs cited Mr. Basto’s past similar injunctions. In a previous case, the Association to Protect Disabled Children won an injunction preventing Mr. Bastos from making any comedic commentary about disabled children.

Decision Overview

On June 23, 2015, Judge Buzzi delivered the opinion of the S.T.J. The Court found that Mr. Bastos had abused his right to freely express his thoughts. It found that Mr. Basto’s commentary was not simply ironic, satiric, or grotesque humor, but transcended freedom of expression protections and violated the right to dignity of Mrs. Camargo and her family. The Court noted that freedom of expression is not absolute and the preservation of honor can justify limitations on speech.

Based on the decision of the Court of Appeals, Judge Buzzi reaffirmed that Mr. Bastos’s  largely publicized comments endangered Mrs. Camargo’s dignity. The Court stated that the sexual intentions of Mr. Bastos were irrelevant and rather found fault in the extremely offensive speech, noting that it fell outside the Court’s definition of a joke. The Court further found the Defendant had made the statements with malice, and accordingly, sustained damages in the amount of BRL 150,000.

Judge Araújo delivered a concurring opinion, stating that, while he agreed that the language was offensive, the damages should be reduced to half the present amount, considering the known satiric nature of CQC. Because of the platform on which the comments were made, Judge Araújo argued that less damage occurred.