Case Summary and Outcome

The Judge of the 1^st Civil Section of Brasilia held that pure usage of the image of a former public official accused of bribery in a political propaganda does not violate his intimacy and privacy and, thus, does not imply perpetual harm to that former public official.

Facts

On May, 14, 2005 Veja magazine published what would be the biggest corruption outrage ever investigated in Brazil. The news story contained photos representing parts of a video in which one director of the Federal Mail Service named Maurício Marinho is shown receiving bribery and informing that such money would supply safes of a prominent political party from the base allied to the government. The story known as “Mensalão” had begun, and some influent high graduated politicians were convicted and arrested into jail years after.

On September, 15, 2013 – same year that the Supreme Court convicted some politicians due to Mensalão, Popular Socialist Party (“PPS”) included in its political propaganda Veja’s front page showing a photo from the film in which Mr. Marinho was receiving bribery. Against this political propaganda Mr. Marinho filed a lawsuit with the Civil Section of Brasilia claiming an injunction to impede PPS’s usage of his image, plus indemnity due to alleged moral damages.

According to Mr. Marinho, notwithstanding the image has had broad media disclosing in 2005, such exposition promoted by PPS many years later was unnecessary and, worst than that, with no criminal conviction so far. Due to this reality, Mr. Marinho alleged that PPS’s action violated his honor, image and psychology integrity, claiming indemnity therefore.

Decision Overview

On March, 6, 2015 J. Shinozaki Filho wrote the opinion finding that the claims should be dismissed.

The issue faced by the Court was whether a former public office caught up and filmed receiving bribery – though his conviction has not been decided so far – could claim for damages and asks for an injunction to avoid the reproduction of his image years after alleging that such reproduction harmed his honor, image and psychological integrity.

Under article 5, IV of Brazilian Federal Constitution (“BFC”) assures the right of freedom of expression – which obviously includes political propaganda – and, in IX, freedom of communications without censorship. In article 5^th, XIV, BRC states the FoI, protecting the source when necessary to safeguard professional secrecy of the journalist. Article 220 of BFC also assures freedom of communications without restraints. That was PPS main defense. In Mr. Marinho’s favor, the same article 5^th, but in V, states that the abuse in the exercise of FoI subjects the violator to reply and indemnity – and in X, assures privacy, intimacy, honor and image’s integrity for any person.

The Court deemed constitutional PPS’s political propaganda, considering that no allusion to Mr. Marinho was made in the propaganda – on the contrary, it was limited by showing just Veja’s front page where was published a photo of his bribery film, and not even reproduced the full film. Due to this understanding, the Court also considered that no violation to Mr. Marinho privacy, intimacy and psychological integrity was placed and, thus, there was no space to discuss whether PPS’s political propaganda implies a perpetual sanction against him. Thus, the decision dismissed Mr. Marinho’s claims.

As Mr. Marinho had not appealed, on May, 11, 2015 the decision became definitive.