Case Summary and Outcome

The Court of Appeal of the State of Rio Grande do Sul dismissed a politician’s claim for indemnity in response to the use of a life-sized “dummy” of him in a protest calling for his arrest for alleged misconduct. The politician argued that this violated his right to honor. In reaching its decision, the Court of Appeal stressed the democratic value in ensuring that the right to demonstrate freely takes preference over personality rights. The Court of Appeal also highlighted that the protest was on an issue of public interest, based on current events, and concerned political figures. The politician subsequently appealed the decision to the Supreme Court of Brazil, which dismissed the appeal.

Facts

The Center of Professors of the State of Rio Grande do Sul, a trade union of teachers, held a public protest in Porto Alegre, Brazil. The protesters created nine life-sized “dummies” of politicians who were, at that time, defendants in a class action lawsuit for administrative misconduct. The protesters dressed in military police costume and handcuffed themselves to the “dummies”. The politicians were easily identified from the “dummies”, and the protesters chanted slogans such as “lock ’em up.”

The protest was intended to put pressure on the authorities to arrest the nine politicians for their alleged illegal activities. Among the politicians depicted was the  Governor of the State of Rio Grande do Sul. Another one of the politicians depicted, Luiz Fernando Zachia, felt that his honor was injured by the use of his image as a “dummy” in the protest and he filed a claim for compensation. The lawsuit was dismissed at first instance, and was then appealed to the Court of Appeals of Rio Grande do Sul.

Decision Overview

The Court of Appeals (Court) began by recognising that the freedom to take part in public demonstrations was covered by the fundamental right to freedom of opinion and expression. The Court then noted that the right to freedom of expression was not absolute and could be limited in certain cases. The Court considered the limits that may be imposed on the right in the context of protests in order to determine whether the activities of the protesters gave rise to Mr. Zachia’s claim for indemnity.

First, the Court stated that the right to freedom of expression required individuals to exercise the right in accordance with the ethical duty of “truthfulness”. In other words, individuals were not to convey distorted information. The Court clarified that although a duty of “truthfulness” was required in the context of public protests, it was a different level of duty than that imposed on the media. The Court explained that this was because protests were more spontaneous in character. The Court concluded that the duty of “truthfulness” in the context of protests merely required that the protests not be completely detached from “the real world”.

Second, the Court acknowledged that the right to freedom of expression may be limited where the right was being abused. Under this heading, the Court reflected on the fact that there is no specific individual holder of the right to freedom of expression in the context of protests, as the opinions conveyed derive from the collective will of various participants rather than any one person.

Third, the Court highlighted that freedom of expression must be compatible with other fundamental rights. However, it went to note that the freedom to publicly protest usually takes precedence over personality rights, including the right to honor. This is because the freedom relates to the realisation of democratic values such as pluralism and the political participation of citizens. The Court also highlighted the crucial importance of distinguishing between the public and the private. For instance, taking into account whether the expression was private or public in nature, and whether the subject targeted by the expression was a private or public individual.

Finally, the last issue to be considered where the right to freedom of expression conflicts with personality rights was the balancing of the property, rights, and interests at stake. This required: (a) identification of the principles, goods, values ​​and rights in conflict, (b) assigning of weight or importance to each of the principles, properties, values ​​and rights in conflict, taking into account the circumstances of the case, and (c) consideration of the principle that where there is a greater degree of restriction imposed on the right to freedom of expression, there must also be a corresponding greater importance in realising the other right being protected.

In light of the above, and following examination of images and footage from the protest, the Court concluded that the protest did not give rise to a duty to indemnify Mr. Zachia. The Court found that the protest was not detached from “the real world” as it was in response to a class action lawsuit filed against Mr. Zachia. Furthermore, these events were of public interest. The Court also dismissed the allegation that there was an abuse of the right to freedom of expression. In doing so, the Court noted that the main focus of the protest was the Governor of the State of the Rio Grande do Sul as his “dummy” was the only one in the foreground in the footage and his was the only name cited. The Court also found that the protest related to Mr. Zachia’s function as a public figure. The Court indicated that, as a public figure, he had to have greater tolerance for criticism.

Mr. Zachia filed an extraordinary appeal to the Supreme Court of Brazil (STF), which upheld the decision of the Court.