Defamation / Reputation
Afanasyev v. Zlotnikov
On Appeal Contracts Expression
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The 4th Civil Court of Brasilia found Monica Iozzi de Castro guilty of violating Gilmar Ferreira Mendes’ honor protected under Article 5 of the Brazilian Constitution. Mendes sued Iozzi for posting a photo on her Instagram account which implied that Gilmar Ferreira Mendes, a justice of the Supreme Court, was complicit in the felonies of a convicted rapist. Iozzi’s post was in response to Justice Mendes’ decision to hear a writ of habeas corpus of physician and convicted serial rapist, Roger Abdelmassih. The Court reasoned that due to the fact Iozzi, a Brazilian TV icon, had influence over a large audience via social media, she had a greater duty than most to be conscious of the possible consequences of her expression. The Court found that Iozzi’s rights to freedom of expression did not justify the violation of Mendes’ Article 5 protections. Castro was ordered to compensate Mendes for moral damages.
Monica Iozzi, TV presenter and actress, posted on her personal Instagram a photograph of Gilmar Mendes, a Supreme Court justice, with “accomplice?” printed over his face. Beneath the photograph, black font reads “Gilmar Mendes granted Habeas Corpus to Roger Abdelmassih, after his conviction to 278 years in prison for 58 rapes.” Iozzi wrote in the image’s caption, “[i]f a Justice of the Supreme Court acts this way… I do not even know what I can expect…”
Mendes sued Mrs. Iozzi claiming that the publication was offensive to him both personally and professionally and therefore was seeking BRL100,000 in moral damages. He alleged that the post sought to associate his image with crimes of sexual violence. Mendes further alleged that due to Iozzi’s popularity as a public figure, the post had a greater impact on his reputation and, therefore, should be subject to a higher level of repercussion.
Iozzi argued that she was merely exercising her right to freedom of expression and her right to criticize, both guaranteed under the constitution. Further, she argued that she had not created the image and was only one of several people who had shared it on the web.
On September 21, 2016, J. Resende Costa ruled in favor of Mendes but only granted BRL30,000 in damages.
J. Resende Costa found that Iozzi was liable because her Article 5 right to freedom of expression did not extend to justify the violation of Mendes’ Article 5 protection of his image. The Court partially based its decision on that fact that Iozzi is a famous Brazilian TV icon and has influence over a “gigantic group of followers.” The Court cited to the fact that the Instagram post in controversy had 14,800 likes at the end of May 2016. J. Costa noted that it was impossible to know the exact audience size and diffusion of information which is taken into consideration to determine the damages.
J. Costa found that Iozzi stretched “the limits of her right to expression” when she criticized Mendes’s decision to grant habeas corpus to convicted serial rapist Roger Abdelmassih. J. Costa argued that her actions were harmful because they linked Mendes’s image to serious felonies generating social outrage. Furthermore, Mendes’s position as an important member of the Brazilian Republic exacerbated the damage.
J. Costa dismissed Iozzi’s argument that she did not create the image and, therefore, was not liable. J. Costa stated that because Iozzi is a public figure, her actions carry greater weight and she has a greater responsibility to exercise her right to freedom of expression responsibly and with due caution.
J. Costa awarded Mendes BRL 30,000.000 in damages.
On May 17, 2017, the case was closed by a settlement in which Iozzi must pay BRL 30,000.00 to Mendes.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision limits freedom of expression for various reasons. First, it limits public figures’ ability to engage in political speech or criticism. Second, it holds an individual liable for the sharing of information that the individual neither created nor substantially added to. Finally, the Court’s decision protected individual rights over freedom of expression.
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.
Although casuistic, this case can be useful as a precedent to other cases in which controversial judicial decisions give motivation to abusive expressions.
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