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International Libel and Privacy Handbook
A Global Reference for Journalists, Publishers, Webmasters, and Lawyers, 2nd edition
Charles Glasser, Jr.
The new edition of a practical reference for journalists, editors, authors, webmasters, media executives, publishers, and students around the world
Format: Paperback
ISBN: 981576603246
Publisher: Bloomberg Press
Pub. Date: 1/2009
496 pages pages, 6-1/8" x 9-1/4"
Retail Price: $49.95
Your Price: $42.46
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Publishers, journalists, and authors can be sued for violating legal standards thousands of miles away from where they work. This book, written primarily for journalists and editors, but of use to their lawyers, explains risks publishers should understand prior to publication, steps to take to avoid legal conflicts, and available defenses in the event of a claim. This new second edition of International Libel and Privacy Handbook is an updated nation-by-nation summary of libel and privacy law written by local practitioners in an easy-to-use reference format covering Europe, Asia, the Middle East, and the Americas.
Glasser's second edition includes new chapters on emerging media markets such as the Middle East and Malaysia, as well as thorough legal updates on all major media nations.
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Charles J. Glasser Jr. is global media counsel to Bloomberg News®. Before joining Bloomberg, he represented a wide range of broadcasters, magazines, and newspaper publishers. He has litigated many of the issues covered in this book.
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“A clear understanding of the laws of this country and the rest of the world is essential if the news media and book publishers are to act as public watchdogs. Charles Glasser’s book is a wonderful resource—both clearly written and concise.”
—Christopher Finan
President, American Booksellers Foundation for Free Expression
“With a section devoted to overarching issues of global interest, including special issues affecting book publishers, the International Libel and Privacy Handbook is an invaluable resource for editors and in-house counsel and belongs on the reference shelf of every publishing house.”
—Judith Platt
Director, Freedom to Read, Association of American Publishers
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Foreword by Matthew Winkler
Acknowledgments
Preface: Understanding Media Law in the Global Context About the Editor
About the Contributors
Introduction: How to Use This Book
PART ONE: AMERICAS
1 Brazil
Laura Fragomeni and Paula Mena Barreto, Barbosa, Müssnich & Aragão
Eduardo de Moraes, Evaristo de Moraes
2 Canada
Brian MacLeod Rogers
3 United States
Thomas H. Golden and Stephen B. Vogel, Willkie Farr & Gallagher LLP
PART TWO: Asia and Australia
4 Australia
Peter Bartlett, Minter Ellison
5 China
Vincent Wang and Edward J. Davis with Monica Pa, Davis, Wright Tremaine LLP
6 Hong Kong
Edward J. Davis, Davis Wright Tremaine LLP with Doreen Weisenhaus and Rick Glofcheski, University of Hong Kong
7 India
Janmejay Rai, Phillip Ninan, and Jayne Kuriakose, Kochhar & Co.
8 Japan
Yoshio Iteya, Tomoya Fujimoto, and Akira Marumo, Mori Hamada & Matsumoto
9 Korea
D. S. Choi, Christina Lee, and J. H. Kim, Kim & Chang
10 Malaysia
H. R. Dipendra, Tengku Hishamudin Ram Dipendra
11 The Middle East
Charles J. Glasser Jr., Bloomberg News® with Ava Macalpin, Princeton University
12 Singapore
Tay Peng Cheng, Wong Partnership LLP
13 Thailand
Sinfah Tunsarawuth, Attorney at Law
PART THREE:
EUROPE
14 Belgium
Steven De Schrijver, Van Bael & Bellis
15 England and Wales
Mark Stephens, Finer Stephens Innocent
16 France
Dominique Mondoloni, Willkie Farr & Gallagher LLP
17 Germany
Jan Hegemann and Slade R. Metcalf, Hogan & Hartson LLP
18 Italy
Iacopo Destry and Marco Consonni, Dewey LeBoeuf LLP
19 Netherlands
Jens P. van den Brink, Kennedy Van der Laan
20 Poland
Charles J. Glasser Jr., Bloomberg News®
21 Russian Federation
Nellie Alexandrova, Anna Otkina, Ekaterina Petrova , and Anton Pushin, Denton Wilde Sapte
22 Spain
Almudena Arpón de Mendívil, Gómez-Acebo & Pombo
23 Switzerland
Rolf Auf der Maur, VISCHER
APPENDIXES
I. Special Issues for Book Publishers
Slade R. Metcalf, Hogan & Hartson LLP
II. Shooting Stars: Privacy Claims in the UK
Amber Melville-Brown, David Price Solicitors & Advocates
III. Cross-Reference Chart
Charles J. Glasser Jr., Bloomberg News®
IV. Recommended Reading
Index
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Chapter 1
Brazil
by Laura Fragomeni and Paula Mena Barreto, both of Barbosa, Müssnich & Aragão, and Eduardo de Moraes of Evaristo de Moraes
Introduction to the Brazilian Legal System
The Brazilian legal system is derived from traditional civil law theories and is guided by the Brazilian Federal Constitution, which was drafted in 1988. The “new” system has significantly streamlined a Brazilian system that was infamous for having an excessive number of laws. The current judicial system has two branches, a federal branch and a state branch. There are two levels of federal courts in Brazil. Federal districts, composed of states and municipalities, each have their own court, called the Federal District Court. The second level of the federal branch is the Supreme Court of Justice, the highest federal court in the country. The state system is composed of states and municipalities within each state. Each state has its own uniquely organized judicial system, and each state’s courts, judges, and jurisdiction are determined by a state constitution. State legal powers are limited by the federal constitution, but are otherwise unhindered. Municipalities have constitutional equivalents, called organic law, but no court system, and must obey all federal constitutional laws.
Brazilian Civil Code and Media Law
Persons producing content subject to Brazilian law are advised to familiarize themselves briefly with the structural framework of Brazil’s legal system and its approach to media law. Article 5 of the Constitution of Brazil (CB, in force since 1988) and Brazil place a high value on freedom of the press; however, the CB also provides citizens with the inviolability of privacy and private life. Therefore, the various constitutional guaranties must be weighed against each other in any given case. In addition, certain restrictions on press freedom have been established via legislative means. The Brazilian Civil Code (BCC), which was passed in 2002, introduced changes in the area of personality rights, including the right to private life. The BCC provides that the private life of natural persons is inviolable and that the courts, on application by an interested party, may adopt such measures as may be necessary to prevent any act contrary to the inviolability of private life or to cause such acts to cease.
1. What is the locally accepted definition of libel?
The CB guarantees both freedom of the press and the right to privacy. Provision is made for the freedom of artistic and scientific expression and communication which is free from censorship or restriction. On the other hand, the CB also states that “honor, dignity, image, and the right to privacy are all inviolable rights,” breach of which gives rise to an entitlement to damages. Libel is both a criminal offense and a civil wrong in Brazil. Chapter 3(Capítulo III) of the Press Law sets out the offenses arising from abuse of the right to freedom of thought and information using communication/information media. The term media, in this context, covers newspapers and periodical publications, radio transmission, and other news services. Media crimes are divided into two classes: on the one hand, public order offenses or the divulging of state secrets, and on the other, defamation (“crimes against reputation”). Depending on the conduct of the agent, libel (in a broad definition) can take, according to Brazilian law, three different forms: calumny (calúnia), defamation (difamação), and injury to dignity or decorum (injúria). These three crimes are defined as follows:
Calumny: To falsely accuse someone of committing a criminal act (punishable by six months’ to three years’ imprisonment plus a fine ranging from one to twenty minimum salaries). In the offenses of calumny (art. 20) and defamation (art. 21), the publisher alleges a provable fact. In the former (calumny), the publisher must have knowledge of the falsity prior to publication. It is important to note, however, that in certain circumstances the defendant accused of the crime of calumny or defamation may rely on the defense of truth. This defense is generally available in calumny (art. 20) but only in limited circumstances in defamation (art. 21), and not at all for injury to dignity (art. 22). The defense of truth, where applicable, is an absolute defense, whereby the defendant avoids conviction.
Examples of calumny include the following: The unproven allegation that a judge, in the city of Canoinhas, had committed the offense of threatening behavior (which constitutes a crime) against the owners of a publishing company, saying that if the editor in chief did not stop writing about the mayor of the city, he would be severely punished, with payment of fines and, additionally, imprisonment. The publisher published such threats. The truth of the allegedly calumnious statement was not proved and, for this reason, the owners of the company were convicted. In a city in the State of São Paulo, a public agent was accused of manipulating the results of a public contest and making false representations. The court decided that such a statement would constitute a crime of calumny.
The following statements were found not to constitute calumny: A news report was published of a charge of manslaughter filed against a medical practitioner. Because the charges had in fact been brought, the court found the statement justified by truth and held there was no crime of calumny. A journalist authored an article in which he referred to the plaintiff as a drug dealer, for being criminally convicted and currently on conditional release. However, the court decided that libel was not present, once the defendant had established his fact-finding on the animus narrandi (“willing to tell”).
Defamation: To allege that someone has performed a disreputable act (punishable by three to eighteen months’ imprisonment plus a fine of between two and ten minimum salaries). In the lower-level offense of defamation, the act which the victim is stated to have performed is not a criminal act, but is nonetheless conduct that is detrimental to the victim’s reputation (disreputable). An individual’s reputation is the person’s “standing in society.” The law seeks to uphold and protect the esteem in which a person is held by society—objective dignity.
Examples of defamation include: Blaming the mayor of a municipality for improper accounting procedures at City Hall, saying he had “never been transparent” in his accounting and that the “public authorities were reluctant to publish the accounts” because of fear of reprisals. In another case, an article referred to the mayor of a certain city as “mentally disordered.” The court understood this conduct as defamatory, and no public interest was present in the context of this statement. For this reason, the statement was not supported by the principle of freedom of speech in the Brazilian Constitution.
The following statements were found not to constitute defamation: A newspaper reported the filing of administrative proceedings against an educational institution. The court held that the aim of the report was to inform the community of an issue of public interest. The journalist’s intention was not to defame the legal entity referred to or its partners. In another case, a journalist published a satire animus jocandi (“willing to make fun”) that alleged provable facts. Because they were true, the way they were published was considered a legal form of expression by the journalist.
Injury: To offend someone’s dignity or decorum (punishable by one to twelve months’ imprisonment or a fine of between one and ten minimum salaries). The offense of injury (art. 22) involves making statements which simply offend the subjects’ “decorum and dignity.” Decorum (in Portuguese dignidade) refers to a person’s moral attributes, whereas dignity (in Portuguese decoro) refers to the individual’s physical and intellectual attributes. The mere use, to describe a person, of words which express a negative concept or image and which offend “subjective” honor (the victim’s self-image, as opposed to that person’s image in society) constitutes grounds for prosecution for this offense.
Examples of injury include: An article describing one of the candidates standing for presidency of a municipal legislative assembly (City Hall) as a “hypocrite,” “false moralist,” and “a man of limited cultural resources” was held to show a clear intention of offending the individual’s dignity and decorum rather than making a criticism based on public interest. In another instance, a newspaper published an article stating that the mayor of a city in the State of Rio de Janeiro was a “scoundrel” and his behavior was harmful to the poor population. The court understood that the use of the word “scoundrel” constituted a violation of the subjective honor of the mayor and the newspaper was convicted.
The following examples found that injurious publications had not been committed: A politician was called “selfish” and a “political opportunist” by his political opponent. The court decided that such conduct did not characterize injury because it constitutes (legitimate) criticism. The case of a person named to a public function and who was called “incompetent” and “unable to exercise such function” was adjudicated not injurious because the court held that the expressions were used not to offend the individual but in order to instigate the public opinion against the politician’s appointment.
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