Content Regulation / Censorship, Indecency / Obscenity
Bobby Art International v. Hoon
Closed Mixed Outcome
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The São Paulo Court of Justice denied the application of the Prosecution Office requesting that the newspaper, Notícias Populares, be commercialized only in sealed and opaque packaging. The claim was made in a Public Civil Action under Articles 78 and 79 of the 8.069/90 Law (Child and Youth Statute), which require magazines and publications having inappropriate and unsuitable content for children and adolescents to be commercialized in sealed and opaque packaging with a warning on its content. The Court of Justice, in accordance with Article 220 of the Brazilian Constitution, ruled that the commercialization in sealed and opaque packaging shall only occur if and when the newspaper, at its sole discretion, believes that the content is not child-friendly.
Notícias Populares circulated in São Paulo between October 1963 and January 2001. The newspaper’s target audience was people with lower incomes, and it often presented headlines on daily life in São Paulo’s most popular districts.
The Prosecution Office filed an action to make compulsory the packaging and the warning, as referred above, under penalty of a daily fine corresponding to the unit price of the periodical, multiplied by the average daily print, in accordance with the terms of Articles 78 and 79 of the Child and Youth Statute. The Prosecution Office claimed that Notícias Populares was systematically publishing, on its front page, pictures and headlines containing violence, sex, and vulgar words, and that this content was inappropriate to those under eighteen years old. For this reason, the Prosecution Office argued the newspaper should adopt the necessary precautions in the distribution of its copies.
Notícias Populares argued: (a) the order to commercialize copies of its papers in sealed and opaque packaging could not be general and unrestricted to all the editions, given that its headlines hardly ever contained inappropriate content; (b) the commercialization of the newspaper in sealed and opaque packaging would result in liquidation of the company, because, as a media vehicle intended for the poorest section of the population, it was essential that people be able to see the newspaper’s front page at the time of sale; (c) the newspaper was not intended for children and teenagers, but was geared toward adults; (d) the use of sex and scenes of violence on the newspaper’s front pages depicted the daily life of the people for whom the newspaper was intended; (e) adults, children, and adolescents who lived on the outskirts of São Paulo were subjected to the violence presented in newspaper’s headlines, which accordingly reflected these real aspects of daily life; (f) the language used in the newspaper was appropriate to the target audience; and (g) the paper did not use, in any way, an obscene and pornographic vocabulary. Notícias Populares also highlighted the provisions on freedom of the press as set forth in the Article 220 of the Brazilian Constitution.
The court of first instance found that Notícias Populares was inappropriate for children and adolescents due to its editorial line and determined that there was an obligation to commercialize in sealed packaging with a warning stating the material was not suitable for children and adolescents when the front page contained visual or written messages with obscene or pornographic content. The court based its decision in its interpretation of Articles 226 and 227 of the Brazilian Constitution, which set out the protections afforded to the family by the state and work to ensure that the dignity and respect of children and adolescents remains an absolute priority. The judge also said that, despite Article 220 of the Constitution containing the principle of freedom of the press, it cannot be interpreted without limits and allowed to disregard distinctions that exist between an adult and a man in process of formation. The court found that the newspaper contained vulgar, rude, and sensational headlines with shocking images of mutilated bodies, corpses, violent scenes, and other tragedies that violated the rights of children and adolescents.
Notícias Populares appealed this decision, and the São Paulo Court of Justice reversed, ordering that the newspaper be commercialized in sealed and opaque packaging only when its articles and pictures on the front page were, in fact, inappropriate for children and adolescents. The Court rejected the idea that an obligation should be imposed on the newspaper that it must circulate with sealed packaging for all future editions, regardless of that particular edition’s content. The Court argued that this might constitute an offense to the Constitution, which prohibits prior censorship. Furthermore, the Court concluded that the decision as to which editions should or should not be subject to these restrictions was to be decided by the newspaper itself, by means of self-criticism and self-censorship. A fine could be applied only if the newspaper’s determinations were found unsatisfactory.
The São Paulo Court of Justice’s decision was later upheld by the Superior Court of Justice.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Because the São Paulo Court of Justice ruled that commercialization in a sealed and opaque packaging shall be required when Notícias Populares determines that the materials on the front cover are not child-friendly, the outcome of the case places some restriction on freedom of the press. However, given that the decision to apply this restraint is left to newspaper’s sole discretion, it is a limited form of censorship. The Superior Court of Justice later affirmed the Court’s decision.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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