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Brazil: Federal Supreme Court Authorizes Unauthorized Biographies

(June 17, 2015) On June 10, 2015, the Brazilian Federal Supreme Court unanimously decided that it is unconstitutional to require authors to ask for prior authorization of the persons who are the subjects of biographies, or their heirs, before the publication of bibliographic or audiovisual works. This requirement of prior authorization was established in article 20 of the Civil Code (see below). (André Richter, STF Derruba Autorização Prévia para Publicação de Biografias, AGÊNCIA BRASIL (June 10, 2015).)

According to Minister Carmen Lúcia, the justice who wrote the opinion, the need for authorization amounted to prior censorship, and although the freedom of biographers is guaranteed, Lúcia explained that, in case of abuse, moral and material damages are available to the offended party. She further stated, to comply with the Constitution, it is not possible to forbid the publication of a work, remove a work that has already been published, impede the work’s circulation, and finally silence, not just the words of another person, but gag history. (Id.)

The decision was rendered in response to a direct action of unconstitutionality (Ação Direta de Inconstitucionalidade) filed by the National Association of Book Editors against decisions in favor of the prior authorization that had been previously issued by lower courts in the country and that prevented the publication of unauthorized biographies. (Id.)

Civil Code

Article 20 of the Brazilian Civil Code determines that, except if authorized or necessary for the administration of justice or the maintenance of public order, publication of writings, transmission of speech, and publication, exhibition, or use of the image of a person may be prohibited at the request of the person and without prejudice to any indemnification to which the person may be entitled, if they affect the honor, the good reputation, or the respectability of the person or if they are intended for commercial purposes. (Código Civil, Lei No. 10.406, de 10 de Janeiro de 2002, PLANALTO.)

Ação Direta de Inconstitucionalidade

According to article 102(I) of the Constitution, the Federal Supreme Court has original jurisdiction to try and to decide, among other types of cases: “direct actions of unconstitutionality [ação direta de inconstitucionalidade] of a federal or state law or normative act, or declaratory actions of constitutionality [ação declaratória de constitucionalidade] of a federal law or normative act.” (Constituição Federal (1988), art. 102(I)(a), PLANALTO.)

This jurisdiction somewhat resembles the issuance of advisory opinions; in contrast, the rendering of such opinions is not allowed for the Supreme Court of the United States, which requires the existence of an actual case or controversy to hear a case. (U.S. CONST. art. III, § 2, amended by U.S. CONST. amend. XI.)

A direct action of unconstitutionality is the route by which, without injury to an individual right, there is a procedure to identify whether rules (laws or federal and state normative acts) are contrary to constitutional principles, invalidating them. (1 MARIA HELENA DINIZ, DICIONÁRIO JURÍDICO 57, 58 (São Paulo, SP: Editora Saraiva 2005).)

A declaratory action of constitutionality aims to obtain a declaration, in theory, of the constitutionality of a norm because it conforms to the Constitution. (Id. at 45.)

Article 103 of the Constitution provides that the President of the Republic, the Executive Committee of the Federal Senate, the Executive Committee of the Chamber of Deputies, the Executive Committee of a legislature or the Legislative Chamber of the Federal District, the Governor of a State or the Federal District, the Attorney General of the Republic, the Federal Council of the Brazilian Bar Association, a political party represented in the National Congress, a union confederation, or a national class entity can bring direct actions of unconstitutionality and declaratory actions of constitutionality.

Law No. 9,868 of November 10, 1999, provides for the trial procedures of these types of actions. (Lei No 9.868, de 10 de Novembro de 1999, PLANALTO.)