Global Freedom of Expression

Español العربية

Jurandir v. Globo

Closed Contracts Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    May 28, 2013
  • Outcome
    Reparations made by individual or entity who exercised FoE
  • Case Number
    1.334.097-RJ
  • Region & Country
    Brazil, Latin-America and Caribbean
  • Judicial Body
    Appellate Court
  • Type of Law
    Constitutional Law
  • Themes
    Privacy, Data Protection and Retention
  • Tags
    Right to be forgotten, Content-Based Restriction

Content Attribution Policy

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:

  • Attribute Columbia Global Freedom of Expression as the source.
  • Link to the original URL of the specific case analysis, publication, update, blog or landing page of the down loadable content you are referencing.

Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.

Case Analysis

Case Summary and Outcome

The Brazilian Superior Court of Justice found that the right of information and freedom of the press (Brazilian Federal Constitution “BFC”, Article 5th, IX)  is limited by certain protections of the individual (BFC, Article 1st, III), including  the inviolability of privacy, intimacy and image (BFC, Article 5th, X) in the context of the right to be forgotten. The Court used this reasoning to find in favor of Jurandir Gomes de França whose image and name was used in Globo’s television special about the infamous Candelária massacre, despite the fact that Jurandir had been acquitted of all charges. Globo was ordered to indemnify Jurandir for using his image and violating his right to be forgotten.  

 

 


Facts

Jurandir Gomes de França was suspected of contributing to the 1993 Candelária massacre, where policemen and civilians opened fire on over 70 homeless children, resulting in the death of 8 individuals aged 11-20.  Two policemen pleaded guilty leading to Jurandir Gomes de França, a civilian, and two other policemen to be acquitted of all criminal charges with the jury citing lack of evidence. The situations surrounding the controversial decision lead to suspicions of corruption.  The Prosecution  went as far as to boycott the final day of court calling the ordeal a “clown show,” where new witnesses were barred from being heard and new defendants barred from being added.

Globo, a TV broadcaster, created a documentary (“Hot Line:” The Candelaria Slaughter”) that looked into the 1993 Candelária massacre using Jurandir Gomes de França’s name and image. The purpose of the documentary was to explore the controversy and potential corruption that engulfed the court’s criminal proceedings. Globo stated their goal was to show the lack of adequate police investigation of the massacre and that Jurandir Gomes de França was a key player. Jurandir Gomes de França brought the suit to the S.T.J. arguing that Globo violated his right to be forgotten by using his name and image without his permission. Globo responded that because of the historical importance of the 1993 Candelária massacre, the event is of public fact and, therefore, can be portrayed and discussed in news programs. Jurandir Gomes de França argued that his individual rights triumph over Globo’s freedom of expression.


Decision Overview

Justice Luis Felipe Salomāo delivered the opinion of the Court finding in favor of Jurandir Gomes de França and the individual right to be forgotten. The Justice stated that the national attention could lead a reasonable man to question Jurandir Gomes de França’s guilt despite the fact he had been acquitted of all charges, the use of Jurandir Gomes de França’s name and image were of direct violation of his individual rights. The Justice reasoned further that criminals had a right to be forgotten after serving their sentence and thus an individual acquitted of all charges was privy to a similar right.

In response to Globo’s freedom of expression defense, Justice Salomão stated that Globo’s freedom of expression rights conflicted with Jurandir Gomes de França’s individual right to be forgotten. He expresses a fear of individual rights being lost in a digital age and the sensualization of criminal activity by the media. The opinion focuses on individuals’ rights and argues an individual should not have to “relive trial” and a violation of human dignity is not softened if it concerns historical fact. He dismissed Globo’s public interest argument by saying there is a difference between the public being interested and the public interest. Finally, the Justice distinguishes that his opinion does not affect the current news reporting limitedly on current crimes, however, it creates an “expiration date” as to how long the media can report on an individual. This “expiration date”  prevent documentaries that could cause damage to an individual’s reputation and thus prevent the individual from successfully rehabilitating into society. The Justice reasons that individual constitutional rights can limit freedom of expression, especially in commercial settings.

The Court ordered Globo to pay Braz. R$50.000 in damages to Jurandir Gomes de França.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Contracts Expression

The case places an individual’s right to be forgotten and privacy over freedom of expression allocated through media outlets. From a freedom of expression standpoint, this is bad because it restricts how and when news outlets can discuss criminal proceedings. It limits the “watchdog” role of media, which acts in part  to inform the public of corruption. New information from a case that occurred 20 years ago may still be relevant and essential to the public interest.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • Braz., Constituição Federal art. 5(IV)
  • Braz., Constituição Federal art. 5(V)
  • Braz., Constituição Federal art. 220
  • Braz., Constituição Federal art. 221
  • Braz., Constituição Federal art. 5(X)
  • Braz., Constituição Federal art. 5(IX)
  • Braz., Constituição Federal art. 5(XIV)

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Brazil is a civil law country. This decision holds persuasive value in the lower courts of Brazil but is not strictly binding.

Official Case Documents

Official Case Documents:


Reports, Analysis, and News Articles:


Have comments?

Let us know if you notice errors or if the case analysis needs revision.

Send Feedback