Paula Mena Barreto
Partner - Campos Mello Advogados
Defamation, Privacy and Data Protection
The Brazilian Civil Code provides that the private life of natural persons is inviolable, and the judge can, if requested by an interested party, adopt the necessary measures to prevent any act contrary to this provision (Article 21).
The personality rights are also governed by the Civil Code, which are considered non-transferable and cannot be renounced, and their exercise may not be voluntarily limited with some specific exception provided for by law (Article 11).
At the criminal level, the Brazilian Criminal Code sets forth three main crimes specifically against honor: (i) slander: false imputation of a crime to another person (Article 138); (ii) defamation: imputation of something offensive to someone’s social reputation (article 139); and (iii) injury: imputation of something offensive to someone’s dignity (Article 140).
There is no corporate criminal liability in Brazil for violation of honor. Therefore, corporations cannot be held criminally liable for crimes against the honor of others. Individuals who commit crimes against honor can be sanctioned with detention from 1 month to 2 years, depending on the specific crime, and a fine. The penalty may be increased in specific circumstances.
In the case of defamation, the penalty is increased if it is committed against (i) the President of Brazil or a Foreign Head of State; (ii) a public servant due to his/her public duties; and (iii) individuals over 60 years old or disabled. In the case of injury, the penalty can be increased in cases where it regards race, skin color, ethnicity, religion, origin, age, or impairment.
Crimes against honor are of private interest in Brazil, so only the victims are entitled to file a criminal complaint to have the facts prosecutes in Court. Corporations may file criminal complaints for defamation because they have a reputation which is considered material honor for criminal purposes. The victim of a crime against the honor has 6 months to file a criminal complaint as of the date he/she becomes aware of the author of the offense.
An offensive allegation is enough to constitute defamation, regardless of whether it is true. The truth defense is only accepted in Brazil when the victim of the defamation is a public servant, and the offensive allegations are related to his/her public duties. Unfavorable opinions of literary, artistic, or scientific criticism do not constitute defamation as a general rule, unless there is unequivocal intention to insult or defame. The defendant may retract the offense before the verdict is delivered. In such case, the penalty will not apply.
From a civil standpoint, it is possible to demand that the threat or the injury to the right of the personality must cease , and claim losses and damages, without prejudice to other sanctions provided for by law. A statement that is offensive to one’s personality rights (such as the right to privacy, to image, or to honor) may entitle the offended person to claim damages or injunctive relief. As a general rule, an offence could give basis to claim moral damages and also material damages in case of evidence of such material damages.
Since this is considered a non-contractual claim, the victim of the defamation must file the suit seeking for damages within 3 years from the date of the fact. In this suit, the claimant must prove that the respondent committed an injury to the right of the personality. The moral damages do not need to be proven as it is considered by the Brazilian Courts as to be in re ipsa.
In its defence, usually the respondent claims that there was no offense to the personality rights and that the claimant only mentioned facts or provided his/her own opinion, without any kind of qualification related to the personality. In addition, it is common to claim that there is no moral damage and that the event was a merely annoyance.
Every civil trial in Brazil is performed by judges, who are not limited when it comes to the amount of the compensation to be set related to the moral damages. It will depend on the concrete situation, but normally the Courts take into consideration the economic situation of the victim and of the respondent, and the gravity of the offense. Brazilian law does not have a punitive damages rule, but in some cases the Court also considers this approach to set the compensation.
Based on that, defamation and privacy fall under the criminal or civil law in Brazil and the harm to the personality rights, including the harm of the honor of someone, will be decided on a case-by-case basis depending on the concrete case and facts presented by the affected person.
From a data protection perspective, Brazil has recently enacted its first data protection law through Federal Law no. 13,709/2018 (Brazilian General Data Protection Law or “LGPD”), published on August 15, 2018, mainly inspired by the provisions of the General Protection Regulation – GDPR, which is applicable as of May 25th, 2018 in all member states to harmonize data privacy laws across Europe.
The LGPD applies to any processing operation with personal data carried out by a natural person or a legal entity of public or private law, irrespective of the means, the country in which its headquarter is located or the country where the data are located, provided that: (i) the processing operation is carried out in the national territory; (ii) the purpose of the processing activity is to offer or provide goods or services or the processing of data of individuals located in the national territory; or (iii) the personal data being processed were collected in the national territory.
The LGPD does not apply to the processing of personal data that (i) is done by a natural person exclusively for private and non-economic purposes; (ii) is done exclusively: a) for journalistic and artistic purposes; or b) academic purposes; (iii) is done exclusively for purposes of: a) public safety; b) national defense; c) state security; or d) activities of investigation and prosecution of criminal offenses; or (iv) have their origin outside the national territory and are not the purpose of communication, purpose of shared data use with Brazilian processing agents or not the purpose of international transfer of data with another country that is not the country of origin (provided that the country of origin provides a level of personal data protection adequate to that established in the law).
The expression “personal data” has a broad definition as it is considered any data or information related to an identified or identifiable individual (called “data subject”), with “sensitive personal data” being data about racial or ethnic background, religious belief, political opinion, membership labor unions or religious, philosophical or political organizations, as well as referring to the health or sexual life, genetic or biometric data, The “processing activity” is a broad concept and it is considered to be all operations carried out with personal data, such as collection, production, reception, classification, utilization, access, reproduction, transmission, distribution, processing, filing, storage, elimination, evaluation, control, modification, communication, transfer, diffusion or extraction of data or information.
Any processing activity must rely on the proper legal basis provided by the law, such as (i) with consent; (ii) to comply with a legal or regulatory obligation of the controller; (ix) in the legitimate interests of the controller or third parties; among others.
Important principles must also be observed in the processing activity, such as (i) purposes, where the processing must be carried out for specific and legitimate purposes, explicitly and informed to the data subject, without the possibility of subsequent processing in a form incompatible with these purposes; (ii) adequacy:, which is the compatibility of the processing with the purposes reported to the data subject; (iii) need, imposing the limitation of treatment only to the extent necessary to achieve the processing purposes; (iv) free access, where it is guaranteed that the data subjects can consult, easily and at no cost, the form and time frame of the processing, as well as the integrity of their data; (v) quality of the data, which is the guarantee of the precision, clarity, relevance and currency of the data; (vi) transparency, which is the guarantee of clear information that is easily accessible by the data subjects; (vii) security, involving the use of technical and administrative measures to protect the data from access by unauthorized parties and misuse; (viii) prevention, which is the adoption of measures to prevent the occurrence of damages due to treatment of personal data; (ix) non-discrimination, about the impossibility of processing for discrimination, illicit or abusive purposes; and (x) accountability, which is the demonstration of effective means to observe and prove compliance with the rules on protection of personal data.
v. Pres. Juscelino Kubitschek
1455 – 12º andar – Vila Nova Conceição
São Paulo – SP, 04543-011
The material in this Guide is for general information only and does not constitute legal advice.
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