A liberdade de imprensa e os direitos da personalidade: tensões e limites

Abstract

The purpose of this doctoral thesis is to analyze current journalistic communications in Brazil, in face of the tensions between freedom of press (based on the democratic principle) and protection of personality rights, such as names, personal identities, images and voices, honor, privacy, intimacy and secrets (based on the general principle of human dignity), the violation of which can lead to compensation of moral damages (also guaranteed by the 1988 Federal Constitution). One can observe that Brazilian press is strongly concerned with two situations arising from these tensions: the first is the return of censorship, no longer imposed by an authoritarian regime but by court rulings; the second is the so-called industry of moral damage compensation, which can stimulate the practice of self-censorship. To begin with, we must consider that conflicts concerning constitutional principles are resolved by the technique of appraising the confronted rights and evaluating their limitations (since even fundamental rights are not unlimited) in order to find a balance between them. There are situations in which, given the relevant public interest in the news, the right to inform surpasses personality rights, while in others (such as unjustified invasion of people s intimacy) the latter should prevail. Thus, the conclusion is that only a prohibition to divulge information that actually restrains freedom of press ― i.e., resulting from court rulings in which there is not an adequate balance between the two confronted rights ― can be deemed censorship. As for the compensation issue, rulings fixed at excessive amounts tend to be reviewed in the higher courts, but not even that concern would justify self-censorship, since that is always contradictory with journalistic ethics ― by such practice, a journalist will deliberately withhold information of public interest, and often supress the truth. In this scenario, the notion of self-regulating journalistic activity (proposed by the National Association of Newspapers, ANJ), mirrored on the Advertising Self-Regulation National Council (CONAR) is extremely positive and should result in building a press corps with greater ethics, responsibility and respect for human dignity, which will also give it more freedom and make it less subject to moral damage compensations.