Kahiu v. Mutua
Closed Expands Expression
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The Brazilian Supreme Court ruled that biographers do not need to obtain prior authorization from the subject of a biography, nor from his family or agents, as a condition of publication. In so doing it upheld a request made for a Declaration of Partial Unconstitutionality, without modification of the text, of Articles 20 and 21 of the Civil Code.
The National Association of Book Publishers applied to the Court for a Declaration of Unconstitutionality claiming that Articles 20 and 21 of the Brazilian Civil Code requiring prior authorization to publish, expose, or use the image of an individual, disclose certain writings, and to broadcast the individual’s speech were unconstitutional.
The Court reasoned that the fundamental right to freedom of expression rooted in the Brazilian Federal Constitution required that Articles 20 and 21 of the Brazilian Civil Code be interpreted so that there was no longer a requirement for prior authorization from the subject of a biography before publication. The individual and his family’s right to privacy was protected by the publisher’s liability to compensate an injured party if the publisher exercises his right to freedom of expression in a way that exceeds what is reasonable in a democratic society.
On July, 5, 2015, the National Association of Book Publishers (ANEL) filed a Direct Action for a Declaration of Unconstitutionality (ADIN) with the Brazilian Supreme Court. ANEL claimed that Articles 20 and 21 of the Brazilian Civil Code requiring prior authorization to publish, expose, or use the image of an individual, disclose certain writings, and to broadcast the individual’s speech were unconstitutional.
ANEL alleged that Articles 20 and 21 violated the constitutional rights to freedom of expression and failed to include an exception for biographies. ANEL argued that the Articles violated Articles 5th, IV, IX and XIV of the Brazilian Federal Constitution which protect freedom of expression for artistic, cultural, scientific and communication activities. Furthermore, ANEL said, Articles 20 and 21 allow the subjects of biographies to control what is included, modifying and excluding information that may be unfavorable to them.
According to ANEL, the legal provision that grants judges the power to adopt measures to prevent disclosing, publishing, broadcasting or using the information of such individuals creates a form of censorship, which is expressly prohibited by Articles 5th, IX and 220 (paragraphs 1 and 2)of the Brazilian Federal Constitution.
Justice Carmen Lúcia convened a public hearing to gather more information about the issues surrounding Articles 20 and 21. At the public hearing, 20 organizations and individuals spoke, the majority agreeing with ANEL.
On June, 10, 2015, J. Carmen Lúcia delivered the unanimous opinion of the Court ruling in ANEL’s favor.
J. Lúcia found that there was a conflict between the fundamental rights of the individual subject and his family’s rights to intimacy and privacy on the one hand and the freedom of expression and freedom of artistic, cultural, scientific and communication activities of the publisher directly and of society generally on the other hand. The Court noted that this conflict had been the subject of several cases in Brazilian jurisprudence, with many resulting in biographies being prohibited from publication or seized on the basis of Articles 20 and 21 of Brazilian Civil Code. In this way, the Judge said, the right to freedom of expression had often been circumscribed in favor of the fundamental rights of the individual.
However, J. Lúcia noted the international rules guaranteeing freedom of expression and the protection of such freedom: these included Articles 19 of UDHR, 19 of ICCPR and 13 of ACHR, all legally adopted in Brazil, and Articles 10 of ECHR and 11 of ACHPR which were all international standards assuring freedom of expression and protection of such freedoms by participating jurisdictions. She also said that the protection of freedom of expression was rooted in the first Brazilian Constitution in 1824 but had been eroded by Brazilian dictatorships. Further, censorship, or control over another’s expression, is oppressive because it limits access to information and this can include being too politically correct which can act as a form of censorship and have a chilling effect on freedom of expression.
Nevertheless J. Lúcia pointed out that freedom of expression, which includes the right to information, is not an absolute right and legislative restrictions on freedom of expression exist in order to balance the public interest in freedom of expression against the private rights of an individual. However, she stated that these restrictions were limited to a select number of specific cases and that the requirement for any kind of prior authorization for the publication of biographies amounted to a form of censorship and was excluded from any exceptions to the right to freedom of expression.
However, she warned that individuals can be held liable for exceeding what is considered reasonable in the exercise of freedom of expression in a democratic society. In these circumstances an offending individual will be liable to pay damages to an injured party. Therefore, in the present case, if the biography offends or harms the subject of the biography or his family, the publisher must pay damages, in accordance with Article 5th, X of Brazilian Federal Constitution.
Further, the Judge said, that the level of protection afforded to an individual would depend on whether he or she is a public employee or agent, or a person whose activity implies certain public status, in which case the protection will be less than that afforded to a private individual. The rationale being that a person in the public eye cannot reasonably expect to prohibit society from learning about his or her private life.
In conclusion, J. Lúcia provided a constitutional interpretation of Articles 20 and 21 of Brazilian Civil Code under which authorization from the subject of a biography was no longer required in order to publish. However, the Judge protected the individual’s right to privacy by stating that in the case of abuse, the publisher can still be held liable to compensate an injured party.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court protected freedom of expression and information by declaring that the requirement for authors and publishers of biographies to seek authorization from the subject of a biography was unconstitutional and a type of censorship.
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.
Biographers are now free to publish literary and audiovisual biographies without any authorization from the party in question, and current lawsuits imposing such a burden shall be dismissed following the Supreme Court decision.
Narrowly interpreted, the decision protects just literary and audiovisual biographies. Other forms of expression like reports and opinions are not necessarily encompassed in the decision and this question will be left up to the different jurisdictions to answer.
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