B r a z i l

7. CRIMINAL LIBEL, CIVIL DEFAMATION: SLANDER AND LIBEL

Under Article 12 of the Press Law of 1967, Those who, through the news media, commit abuses in the exercise of freedom of expression of thought and of information shall be subject to the penalties established by this law and to answering for the damage they may cause.

Article 13: Criminal offenses in the operation or use of news media are those listed in the following articles.

Article 14: Making propaganda for war, subversion of political and social order or race or class prejudice:

Penalty: 1 to 4 years? imprisonment.

Article 15: Publishing or disseminating:

a) a state secret, news or information regarding preparation of national internal or external defense, provided that its confidential nature is justified as necessary by prior rule or recommendation that it be kept secret, confidential or classified;

b) confidential news or information of concern to national security, so long as there is similarly a prior rule or recommendation that it be kept secret, confidential or classified;

Penalty: from 1 (one) to 4 (four) years? imprisonment.

Article 16: Publishing or disseminating false news or adulterated or distorted true facts that give rise to:

I.   disturbance of public order or social alarm;

II.   lack of confidence in the banking system or credit upheaval in financial institutions or in any corporation, physical or juridical person;

III.  damage to the credit of the nation, the state, the federal district or municipality;

IV. noticeable disturbance in the pricing of goods and real estate in the financial market.

Penalty: from 1 (one) to 6 (six) months? imprisonment when involving the author of the written work or broadcast in question and a fine of the equivalent of 5 (five) to 10 (ten) local minimum salaries.

In the case of I and II above, if the offense is committed with intent:

Penalty: from 1 (one) to 3 (three) months? imprisonment or a fine of the equivalent of 1 (one) to 10 (ten) local minimum salaries.

Article 17: Offense against public morality and good customs:

Penalty: imprisonment of 3 (three) months to 1 (one) year and a fine of the equivalent of 1 (one) to 20 (twenty) local minimum salaries.

Penalty: imprisonment of 1 (one) to 3 (three) months or a fine of the equivalent of 1 (one) to 5 (five) local minimum salaries.

Article 18: Obtaining, or attempting to obtain, for oneself or another person, a favor, money or other advantage for stopping or preventing publication, broadcast or distribution of news:

Penalty: imprisonment of 1 (one) to 4 (four) years and a fine of the equivalent of 2 (two) to 30 (thirty) local minimum salaries.

§1. If the news item whose publication, broadcast or distribution promised to be stopped or prevented, including if expressed in a drawing, object, program or in any other way capable of producing results, causes harm to the good name and the reputation of someone:

Penalty: 4 (four) to 10 (ten) years imprisonment or a fine of the equivalent of 5 (five) to 50 (fifty) local minimum salaries.

§2. Making, or causing to be made, for payment or recompense, a publication or broadcast that amounts to criminal offense:

Penalty: imprisonment of 1 (one) to 4 (four) years and a fine of the equivalent of 2 (two) to 30 (thirty) local minimum salaries.

Article 19: Inciting the commission of any violation of criminal law:

Penalty: a third of the penalty for the actual crime, up to a maximum of 1 (one) year?s imprisonment or a fine of the equivalent of 1 (one) to 20 (twenty) local minimum salaries.

§1. If the incitement is followed by engagement in the crime, the penalties shall be the same as apply to the latter.

§2. Condoning unlawful acts or their perpetrators:

Penalty: imprisonment of 3 (three) months to 1 (one) year or a fine of the equivalent of 1 (one) to 20 (twenty) local minimum salaries.

Article 20: Libeling someone, falsely characterizing a certain action of his as a criminal offense:

Penalty: imprisonment of 6 (six) months to 3 (three) years and a fine of the equivalent of 1 (one) to 20 (twenty) local minimum salaries..

§1. This penalty shall also apply to anyone who, knowing the imputation to be false, reproduces the libelous publication or broadcast.

§2. Truth is admissible as a defense, except if the offended party is acquitted of the alleged offense without right of appeal.

§3. Truth shall be inadmissible as defense against the president of the Republic, the president of the Federal Senate, the speaker of the Chamber of Deputies, the justices of the Federal Supreme Court, foreign heads of state or government, or their diplomatic representatives.

Article 21: Defaming anyone, imputing facts offending their reputation:

Penalty: imprisonment of 3 (three) to 18 (eighteen) months and a fine of the equivalent of 2 (two) to 10 (ten) local minimum salaries.

§1. The exception of the defense of truth shall be admissible only:

a) if the offense is committed against a public official, by virtue of his duties, or against an agency of body that carries out a public authority function;

b) if the offended person so allows.

§2. The publication or broadcast, unless motivated by the public interest, of an unlawful act is defamatory if the offended party has already served his sentence for having committed said offense.

Article 22: Slandering anyone, offending his dignity or decorum:

Penalty: imprisonment of 1 month to 1 (one) year or a fine of the equivalent of 1 (one) to 10 (ten) local minimum salaries

a) when the offended party reprehensibly and directly provoked the slander.

b) in the case of immediate recidivism that results in a further slander.

Article 23: The penalties stipulated in Articles 20 to 22 shall be increased by one-third if any of the offenses is committed:

I.   against the president of the Republic, the president of the Federal Senate, the speaker of the Chamber of Deputies, the justices of the Federal Supreme Court, foreign heads of state or government, or their diplomatic representatives;

II.   against a public official by reason of his duties;

III.  against any agency or authority that carries out a public authority function.

Article 24: Libel, defamation and slander against the memory of the deceased shall be punishable under the terms of Articles 20 to 22.

Article 25: If libel, defamation or slander is inferred from references, allusions or phrases, a person who holds himself to be offended may legally summons the responsible party to provide an explanation within 48 hours.

§1. If the person notified gives no explanation within this time or, at in the judge?s view it is unsatisfactory, he shall be held liable for the offense.

§2. At the request of the person seeking the explanation, the judge may determine if the explanation given should be published or broadcast, under terms of Articles 29 et seq.

Article 26: Spontaneous, express and full retraction or rectification, made prior to initiation of legal proceedings, shall obviate criminal action being taken against the person responsible for the offenses mentioned in Articles 20 to 22.

§1. Retraction by the offending party during trial by on-the-record testimony recognizing the falseness of the imputation, shall render him free of punishment, so long as he pays the court costs and, if the offended party so desires, proceeds within five days and at his own expense to publish news of the retraction.

§2. In the cases in this Article and §1, the rectification must be made or disseminated:

a) in the same newspaper or periodical, in the same place, with the same characteristics and under the same headline; or

b) on the same broadcast station and in the same program or time-slot.

Article 37: Held liable for criminal offenses committed through the press and broadcast stations are, successively:

I.   the author of the written work or broadcast in question (Article 28, §1), if he is a legally competent person resident in the country, except if it concerns a reproduction made without his consent, in which case the one having made the reproduction shall be considered the author;

II.   when the author is out of the country or does not have legal competency to answer for the offense:

a) the editor of managing editor of the newspaper or periodical; or

b) the editor or copy editor registered under terms of Article 9, item III-B, in the case of news or current affairs programs, commentaries, debates or interviews broadcast by radio or television stations.

III.  if the responsible person, under terms of the foregoing sub-paragraph, is out of the country or does not have legal competency to answer for the offense:

a) the manager or owner of the media company in the case of newspapers or other periodical publications; or

b) the director or owner of the broadcast station.

IV. the distributors or vendors of the unlawful or clandestine publication in which there is no indication of the author, editor or address where it was published.

§1. If the written matter, the broadcast or the news is disseminated without an indication of its author, the person considered to be such under terms of Articles 28, §§ 1 and 2 may name him, attaching the original concerned and a statement from the author assuming responsibility.

§2. The contents of this Article shall apply:

a). to broadcast stations;

b) to news agencies.

§3. Indication of authorship, under terms of §1, shall not diminish the liability of the section editor, editor or managing editor, or the editor, producer or director.

§4. In the event that the responsible party enjoys immunity, the offended party may take action against those next immediately responsible, in the order set out in the clauses of this Article.

§5. In the cases of liability stated in Article 37, if the maximum prison sentence is 1 (one) year, the judge may apply only the fine.

Article 38: Liability for criminal offenses committed in the exercise of freedom of expression of thought and of information through news agencies shall lie successively with:

I.   the author of the dispatch (Article 28, §2), if a legally competent person resident in the country;

II.   the news agency manager or owner, when the author is out of the country or lacks legal competency to answer for the offense.

§1. The news agency manager or owner may name the author of the dispatch in question, attaching the latter?s statement assuming responsibility for it. In this case, action shall be taken against the named author, so long as he is not out of the country or been declared incompetent to answer for the offense.

§2. The terms of Article 37, §4 shall apply to this Article.

Article 66: A professional journalist may not be detained or jailed before sentence is final,and in any case only in an outside, airy room with all comforts.

Sole paragraph: Imprisonment of a journalist shall be carried out in an establishment other than those designed for common criminals and not subject to any penitentiary or prison regime.

Article 68: Rulings in the cases of slander, libel or defamation shall be published free of charge, if the party should so require, in the same section of the newspaper or periodical publication in which the item that gave rise to the criminal action appeared or, if it is an offense carried out on radio or television, it shall be broadcast, also free of charge, in the same program and time-slot of the broadcast that was the subject of the complaint.

§1. If the newspaper or periodical publication of the broadcast station fails to comply with the court ruling, it will face punishment of a fine of the equivalent of one to two local minimum salaries per edition or program in which the omission is verified.

§2. In the case of acquittal, the defendant shall have the right to have the ruling published in a newspaper or broadcast in a station of his choosing, with the cost to be borne by the plaintiff.

Article 69: In the interpretation and application of this law, the judge in determining culpability shall take into account any special circumstances under which the information was presented as violating criminal law.

Article 72: A sentence of no more than three years? imprisonment may be suspended for two to four years, provided that:

I.   the guilty party has no prior conviction in Brazil for a press crime;

II.   the guilty party?s background and personality, and the motives and circumstances of the offense lead to the presumption that he will not commit further crime.

Article 73: Recurrence shall be proven when a new criminal offense of abuse of the exercise of freedom of expression of thought and of information is committed after final sentencing in Brazil for committing a similar crime.

Under Article 138 of the Penal Code, libel is the false imputation of a criminal offense punishable by of six months to two years? imprisonment. Truth is inadmissible as a defense under this Article 138 except in certain specified cases ? when an offense is imputed that gives rise to private legal action or when the offended party has not been given an unappealable sentence, when it relates to people listed in Article 141 of the Penal Code, and when it concerns the imputation of a publicly committed offense or when the offended party was given an unappealable acquittal.

Defamation is mentioned in Article 139 of the Penal Code defining it as offense against the reputation of the person and punishable by three months to one year?s imprisonment. The concept of exceptio vertitatis (truth as defense) is not applicable if it concerns a public official and has to do with his duties.

Slander is defined as offense against the dignity or decorum of the person, punishable by one to six months? imprisonment. If the slander refers to race, color, ethnicity, religion or place of origin, the punishment is increased to three years? imprisonment under terms of the Penal Code?s Article 140.

All the punishments provided for above are increased by one-third if the offense is committed against the president of the nation or a foreign head of state or a public official in carrying out his duties or is committed in the presence of several people or by a medium that facilitates its dissemination, under the Penal Code?s Article 141.

There is also provision for defense against charges of slander and defamation when either of the contesting parties or the prosecutor during a trial utters an unfavorable opinion, criticism of art, literature or science, except when there is the express intent to libel or slander or an adverse opinion of a public official evaluating an information in carrying out his duties, as stated in Article 142.

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