Case Summary and Outcome

A Brazilian court denied the request for the removal of a publication reporting a crime from 25 years ago, of which the complainant was the victim. Jose Eduardo Tarraf Filho was a victim of a kidnapping that occurred in 1991 and filed a lawsuit against a Brazilian broadcaster for publishing a report about the crime. The lower court found no abuse of journalistic ethics and emphasized the significance of freedom of information, considering that the report was based on public facts and merely fulfilled its informative role. Accordingly, the court concluded that the rebroadcasting of a report on the crime of which the complainant was a victim does not represent an offense to his personality rights. Despite the appeal, the appellate court declined to hear the matter, citing the absence of new issues raised by the complainant, and affirmed the lower court’s judgment.

Facts

On February 6, 1991, José Eduardo Tarraf Filho, a 12-year-old boy, was kidnapped. Subsequently, four individuals were convicted of the kidnapping and sentenced to imprisonment.

In 2016, the broadcaster TV Tem, an affiliate of Globo TV, a major Brazilian broadcaster, published an article referencing its coverage of the 1991 case.

Tarraf Filho filed a lawsuit against the broadcaster, seeking damages for mental distress and requesting the removal of the article from the broadcaster’s news website.

Decision Overview

On April 18, 2017, the 5th Civil Court of the Judicial District of São José do Rio Preto, led by Judge Mauricio José Nogueira, delivered the decision.

The central issue for the Court was whether the re-airing of a report on the crime of which the complainant was a victim was sufficient to offend his personality rights and constitute moral harm. Although the decision did not explicitly reference any Brazilian or international laws, it assessed whether, in the present case, the necessary requirements for establishing moral harm were observed in contrast to the protection of freedom of expression and the press.

Judge Nogueira rejected Tarraf Filho’s application, stating that the publication followed the principles outlined in the Federal Constitution as the facts in the article were deemed of public interest.

The Court also determined that the requirements for damages due to mental distress were not fulfilled. Judge Nogueira highlighted three requirements for establishing civil liability for an illicit act: the agent’s conduct contrary to the law, harm or detrimental consequences to the offended party, and a causal connection.

The Court found that the broadcaster’s conduct did not meet any of these requirements: there was no fault in the broadcaster’s behavior when publishing the article mentioning the case, and there was no damage to the author, understanding that the content of the article “did not unduly affront the author’s right to privacy, honor, and image.” [p. 642]

Judge Nogueira also referenced a ruling from the Superior Court of Justice (REsp 719.592/AL, 2006), stating, “[j]ournalistic activity should be free to inform society about everyday facts of public interest, in compliance with the constitutional principle of the Democratic Rule of Law; however, the right to information is not absolute, prohibiting the dissemination of deceptive news that unduly exposes intimacy or causes harm to the honor and image of individuals, in violation of the constitutional principle of human dignity.” [pp. 642-643]

In the present case, the Judge added that the broadcaster appropriately exercised the right to information, “without using any expression capable of causing displeasure” [p. 643], fulfilling the role of informing.

Thus, Judge Nogueira concluded that if there was no abuse in reporting, the complainant is not entitled to compensation, as it would amount to censoring freedom of expression, which is not permissible.

Nogueira also clarified that disagreeing with the re-broadcasting of the report because it brought up an uncomfortable subject is not sufficient to prevent the media from reporting on facts that occurred, which are public and well-known.

Although Tarraf Filho appealed the decision to the 8th Chamber of Private Law of the Tribunal de Justiça of São Paulo, the appellate court, following precedents, merely affirmed the judgment of the lower court. The appellate court, presided over by Judge Alexandre Coelho, also emphasized that Tarraf Filho had simply reproduced the arguments made in the lower court, which constitutes a procedural impediment for analysis in the second instance. Consequently, the Court did affirm that the lower court’s decision had been well-founded.