Partner - Rogério Alves & Associados
Defamation, Privacy and Data Protection
Contributor: Rogério Alves (Partner, Rogério Alves & Associados)
These values are protected by both the civil and criminal law.
*The Portuguese Civil Code protects any unlawful offence or threat of offence against an individual’s physical or moral personality. Both the deceased and the living may benefit from this legal protection.
The Civil Code also protects an individual’s image, their intimacy and right to privacy, while the Constitution itself expressly protects private communications such as personal letters and phone calls and the home privacy.
Access by the authorities to private communications or private residences requires a prior court order.
Portuguese law protects personal privacy by determining a sphere of recognised rights to be enjoyed by each citizen. The challenge, as in many other countries, lies in determining how to reconcile the individual right to privacy with the exercise of other third parties rights, such as freedom of speech and freedom of press, and with the duties imposed upon the state, for example to pursue criminal enquires.
Where an infringement of the right to privacy has occurred, the victim may sue the responsible for the breach. If the Court finds that, on balance, the infringement was not justified, the offending party will be ordered to compensate all damage arising from the violation. Portuguese law distinguishes between intentional violations (where the defendant’s aim was to offend) and unintentional or negligent violations (where the other party did not intend to offend but did so through their actions). The level of compensation ordered by the court is designed to reflect the degree to which the defendant intended his actions to have the consequences they did.
Historically, The Portuguese courts have not been particularly vigorous in protecting the right to privacy.
Article 484 of the Civil Code provides that “anyone who affirms or spreads a fact that may damage the credit or good name of any natural or legal person is liable for damage caused to said person”. Compensation is awarded in a sum which the court deems necessary to restore the plaintiff’s standing to the position in which he would have been in had the tort not been committed.
The compensation awarded reflects actual losses and any gains or profits that the plaintiff was prevented from realising due to the violation in question.
*The Portuguese Penal Code came into force in 1982 and has been modified at various times since then. An important change, implemented in September 2007, related to ‘crimes against honour’ as now set out in Chapter VI of the Code. Two such crimes are of particular interest for present purposes: ‘difamação’ and ‘injúria’.
*Difamação (defamation) is defined as the conduct of somebody who, when addressing to third parties: i) makes a factual allegation concerning somebody else, even if it is only expressed as a suspicion, which offends the latter’s honour and reputation; ii) expresses an opinion about somebody that offends their honour and reputation; or iii) repeats such an allegation or opinion.
Upon conviction for this offence, the offender can be sentenced to a maximum of six months in prison or 240 days’ fine. However, where ‘difamação’ is committed in a way that facilitates disclosure to the public, or if the court finds that the offender was aware that the facts were false, the minimum and maximum limits of the penalty are increased by one-third.
If the crime is committed through the media then the fine will be a minimum of 120 days and the penalty will rise to a maximum of two years in prison. It is, however, most unusual for a defendant to be sentenced to actual imprisonment. Verdicts involving a suspended sentence are far more common.
Higher penalties also apply where the defamed individual holds a specified public office; those accorded such enhanced protection include the President of the Republic of Portugal, the judiciary, civil servants and teachers.
Difamação is not punishable:
In cases where the defamation occurred as result of the complainant’s own illicit or blameworthy conduct, the defendant will be acquitted (and this applies additionally in relation to ‘injúria’; as to which see below).
Notwithstanding the above defences, the offender shall still be punished if the allegation relates to the private or family life of the offended person.
Court decisions differentiate rudeness (which is not punishable) from actual criminal offences against the honour of the plaintiff (‘difamação’ or ‘injúria’). For example, the Court of Appeal of the District of Coimbra (Tribunal da Relação de Coimbra) found the expression “malformed civically”, criminally irrelevant, although inelegant. The Court of of Appeal of the District of Lisboa (Tribunal da Relação de Lisboa) considered a matter of “verbal virility” the use of a fairly offensive expression, just because it was used in a very specific military context.
When establishing whether a certain allegation is offensive or not it is essential to analyse the context in which such allegation is made.
Public debate on politics, sports and social media, certain forms of art and performance such as comedy shows, for example, are perceived as contexts where freedom of expression tends to prevail in detriment of reputation and honour.
*Injúria (insult) is defined as the conduct of a person who, directly addressing himself to the person offended (as opposed to a third party), imputes facts – even if only expressed in terms of suspicion – or directs expressions offensive to that person’s honour and reputation. Verbal ‘difamação’ and ‘injúria’ are practiced also by writing, gestures, images or any other forms of expression. Therefore, no distinction is made between libel and slander in Portuguese law.
The offence of ‘injúria’ is punishable by imprisonment for up to three months and a fine of up to 120 days.
Both ‘difamação’ and ‘injúria’ are considered ‘private’ crimes. The victim must present a formal complaint against the offender within six months of their first acquiring knowledge of the facts giving rise to the complaint and of the identity of those responsible. The complaint must be presented to the police or the prosecutor, who will take charge. If a suitable explanation is offered by the alleged offender, then charges will be dropped or the judge may waive any penalty (this is the case in both private and public crimes). The record of the proceedings will incorporate the explanation given by the alleged offender and certified copies may thereafter be obtained declaring that the complainant’s name has been cleared or that the accused was found not guilty.
If the criminal complaint is pursued and the defendant is found guilty, he may be sentenced to pay compensation (as well as be fined and/or imprisoned).
Such compensation, even if awarded by a criminal court, will be determined in accordance with civil law guidelines (referred to above). Historically, quite modest sums have been awarded in damages. By way of example:
The court can also order, upon the complainant’s application, that its decision be publicised, namely through the media and in certain cases in a similar way to that in which the defamation was itself published. Nowadays social media may also be used for that purpose.
*The Portuguese Constitution provides for a free press and this is given effect by the so-called Press Law. Article 1 of the Press Law guarantees the right to inform and the right to be informed without restrictions or discrimination. However, the Press Law itself imposes limits on the freedom of the press and recognises an obligation to preserve the individual’s right to his good name, private and family life, image and word.
Article 30 of the Press Law states that ‘the publication of texts or images through the press which offend values protected by law is to be punished in general terms’ and provides that crimes committed through the press (including ‘difamação’ and ‘injúria’) can be punished with a one-third increase in the maximum and minimum sentences applicable.
Contributor: Rogério Alves (Partner)
Rogério Alves & Associados, Sociedade de Advogados, SP, R.L.
Av. Álvares Cabral, n.º 61 – 4º 1250-017
The material in this Guide is for general information only and does not constitute legal advice.
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