Case Summary and Outcome

A Brazilian court ordered a television channel to compensate a citizen for using his image commercially. The citizen had been interviewed as a witness to a disaster, and the channel continued to use the footage long after the immediate reporting of the disaster. The Court ruled that although using the image for reporting was lawful, the channel violated the citizen’s privacy by commercially exploiting it, particularly during a period of emotional distress and sorrow, and ordered the television channel to provide compensation to the citizen.

Facts

On March 15, 2001, two explosions occurred in Rio de Janeiro, Brazil, on the P-36 Platform, the world’s largest semi-submersible oil production platform. The explosions resulted in 11 fatalities and the platform sinking.

Silas da Silva Rozário, was aboard a platform near the location and witnessed the disaster. Journalists captured him expressing his sadness and empathy, and then disseminated his image in Brazil and internationally.

Rozário filed a lawsuit against the television channel TV Globo, submitting that they had continuously broadcast his image even after the accident, which violated his right to privacy, particularly during a period of sorrow.

The lower court denied Rozário’s  requests.

Rozário filed an appeal to the First Civil Chamber of the Rio de Janeiro State Court, reiterating his claim that the television channel used his image improperly and in a demeaning manner.

Decision Overview

Judge Maria Augusta Vaz Monteiro de Figueiredo delivered the decision. The central issue for the Court’s determination was whether there was abuse in the exercise of journalistic activity, balancing values such as freedom of expression and the press with the inviolability of intimacy, private life, honor, and image.

The Court distinguished between the dissemination of someone’s image for informative purposes and then exclusively commercial purposes which would be an abuse of right and a violation of privacy. Judge Figueiredo noted that the Brazilian Constitution, in Article 5, V and X, “recognizes the possibility of compensation for damages that do not affect the material assets of the victim but rather the intimacy, private life, honor, and image of individuals.” [p. 3] She acknowledged that in the present case, on the one hand, there is freedom of expression and the press and, on the other hand, the right to intimacy, private life, honor, and image and that “fundamental rights are equivalent”. [p. 4] Judge Figueirdeo emphasized the need for “harmonization of conflicting rules, guided by the principle of practical concordance, aiming at the proportionality of the protected goods, without subordinating one of these values, considering, in the specific case, the weight and relative importance of each, avoiding any potential abuse in the exercise of journalistic activity, subject to judicial review.” [p. 4]

Accordingly, Judge Figueiredo held that when TV Globo reported on the tragedy it was exercising its journalistic activity, protected by the Brazilian Constitution, but that after the period immediately following the event, it continued to use Rozário’s image without an informative purpose, solely for commercial reasons, constituting abuse.

The Court emphasized that “beyond the news moment, when it was relevant, [Rozário’s] image continued to be disseminated, now without an informative purpose, solely to capture the audience’s attention for the company’s programming. This dissemination had an exclusively commercial aim, as the promotions, using [Rozário’s] photo, aimed to show that the company was always present in crucial moments. This is where abuse in the journalistic activity is evident, as it started to infringe upon the plaintiff’s right to privacy.” [p. 4]

The Court ordered TV Globo to pay compensation of 20,000 Brazilian reais to Rozário (approximately US$3,500 at the time).