Global Freedom of Expression

Nascimento v. State of São Paulo

In Progress Contracts Expression

Key Details

  • Mode of Expression
    Public Speech
  • Date of Decision
    November 17, 2016
  • Outcome
    Monetary Damages / Fines, Reparations made by individual or entity who exercised FoE
  • Case Number
    0005179-47.2008.8.26.0223
  • Region & Country
    Brazil, Latin-America and Caribbean
  • Judicial Body
    Appellate Court
  • Type of Law
    Civil Law, Constitutional Law
  • Themes
    Hate Speech
  • Tags
    Racism, Academic Freedom

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Case Analysis

Case Summary and Outcome

The Court of Appeals of the State of São Paulo held a teacher and the State of São Paulo jointly and severally liable for the harm caused by the teacher’s racist and offensive statements made to her students during one of her classes. The Court concluded that the statements were serious and caused harm to two students who were of African descent. The Court ordered that the students were to be compensated BRL 20,000 in moral damages. In reaching this conclusion, the Court highlighted that schools should promote tolerance and respect.


Facts

Professor Carla Maria Marini Machado was a teacher in a public school in the City of Guarujá, São Paulo, Brazil. In one of her classes she was commenting on Black Awareness Day (Dia da Consciência Negra), a holiday celebrated in a number of cities in Brazil, when she declared that members of the black community were “dumb” and “unable to learn”. Her statements were recorded by a number of her students.

Two of her students, Ms. Nascimento and Mr. Lima, sued the State of São Paulo and Professor Machado for compensation for the moral damage caused by the statements. Ms. Nascimento and Mr. Lima alleged that they had been harmed because they were of African descent.

The Lower Court awarded damages of BRL 20,000 against the State of São Paulo and Professor Machado joint and severally. The State of São Paulo appealed the decision to the Court of Appeals.


Decision Overview

Justice Rebouças de Carvalho delivered the judgment on behalf of the Court of Appeals of the State of São Paulo. He dismissed the appeal, maintaining the decision granted by the Lower Court.

Justice Rebouças de Carvalho found that there was state responsibility in this case because the students’ harm had been caused by the actions of a state employee in a public education facility, into whose custody the students had been entrusted and who had an obligation to ensure the students’ physical and mental integrity. Justice Rebouças de Carvalho deemed Professor Machado’s comments to be improper and unfortunate. Furthermore, the comments were found to be particularly serious given that they were made by a school teacher who is expected to promote coexistence and encourage the freedoms of tolerance, respect, and human dignity. Justice Rebouças de Carvalho concluded that these types of comments from a school teacher should not be admitted, and should be curtailed. Accordingly, Justice Rebouças de Carvalho found the State of São Paulo strictly liable for the actions of Professor Machado. Furthermore, he had little difficulty in finding Professor Machado personally liable for the harm caused by her comments.

Justice Rebouças de Carvalho found that the harm caused to the students went beyond mere annoyance to their daily lives. Instead, the harm amounted to reasonable offence that required indemnification. He went on to find that damages of BRL 10,000 for each student was appropriate given the circumstances of the case.


Decision Direction

Quick Info

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

Contracts Expression

This decision contracts expression by finding a teacher, and the state as her employer, jointly and severally liable in damages for the harm caused by the teacher’s racist and inappropriate comments. The decision highlights that these types of comments are unacceptable from teachers, and should be curtailed. However, the decision does not analyse in any detail the impact such a decision might have on academic freedom or the right to freedom of expression more generally.

Global Perspective

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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., TJSP, Santos v. Machado et. al., 0005127-51.2008.8.26.0223 (2014)

Case Significance

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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.

Official Case Documents

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