Artistic Expression, Defamation / Reputation, Hate Speech, National Security
Baltasar Adolfo v. Audiencia Nacional
On Appeal Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
In the lawsuit brought by Representative Fernando Capez against sports journalist Juca Kfouri, the Brazilian Superior Court of Justice (STJ) rejected the request that the journalist be ordered to cease offending the reputation (honor) and figure of Capez. The Court held that any measure leading to the limitation of the freedom of press should be readily dismissed.
Brazilian member of the House of Representatives, Fernando Capez, filed a lawsuit against journalist Juca Kfouri claiming that his reputation (honor) and figure (image) had been repeatedly offended by the pieces published on the defendant’s blog on the internet, Blog do Juca Kfouri (http://blogdojuca.uol.com.br/).
Capez claimed that a large amount of the material on the blog offended him and there was an imminent threat of continuing similar offenses. Accordingly, Capez requested an injunction to protect his rights as an individual, ordering Kfouri to abstain from offending Capez further or be fined. The trial court ruled in favor of Capez, and Kfouri was ordered to abstain from offending Capez under penalty of a BRL 50,000.00 for every offensive piece Kfouri published.
The São Paulo Appellate Court overturned the trial court decision, holding that such a ban on a potential, future, and hypothetical offensive material would amount to censorship.
Because the lawsuit involved an alleged violation of a federal statute, Capez had the right appeal to the STJ. The appeal was denied and the STJ upheld the decision of the São Paulo Appellate Court.
Nancy Andrighi, J., wrote the opinion of the Court. In her opinion, which was followed by the Justices of the 3rd Supreme Court Panel, Andrighi stated that the defendant often went beyond the limits of the right to inform by attacking Capez’s moral standards. Andrighi also noted that other courts had recognized the validity of these offenses; as a result, this led to the assumption that the journalist would continue pursuing this path.
However, due to the subjective nature of assessing the potentially offensive nature of future posts, the Court held that Kfouri could not be ordered to cease offending Capez; since Kfouri himself, a journalist, would hardly be able to fully assess the scope of such conduct if imposed on him. The Court held that if this kind of order were applied in practice it would unlawfully interfere with the journalist’s right to freedom of speech. The opinion also stressed that critical scrutiny from the press is essential to the dissemination of complete and truthful information, and that any kind of exaggerations present in Kfouri’s style of writing are secondary in light of the social relevance of the freedom of press.
The court also held that Capez is a public figure, and citizens are therefore interested in and have the right to follow his professional career. The opinion of the STJ makes several references to ADPF 130/DF, the lawsuit which resulted in a Brazilian Supreme Federal Court decision striking down the 1969 Press Act.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision set an important precedent expanding the freedom of expression. The opinion determined that the Kfouri could not be ordered to cease offending the plaintiff, due to the subjective nature of assessing the potential offensive nature of future posts. If the Court granted Capez’s application, it would effectively censor Kfouri prior to the publication itself, which is not allowed by the Brazilian Federal Constitution.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The Brazilian Superior Court of Justice has the final word on all non-constitutional matters.
Let us know if you notice errors or if the case analysis needs revision.