B r a z i l

10. RIGHT OF REPLY AND OF RETRACTION

The Press Law of 1967 states in 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 29: Every natural or juridical person, public agency or entity being accused or offended in a publication by a newspaper or periodical publication or in a broadcast or with respect to which news media have imparted a fact that is untruthful or inaccurate, shall have the right of reply or rectification.

§1. The reply or rectification may be made:

a) by the person himself or his legal representative;

b) by the spouse, parent, child and brother or sister if the person concerned is out of the country, or if the matter relates to a deceased person or, if the person died after the offense was committed but before the statute of limitations on right of reply.

§2. The reply or rectification must be made in writing within 60 (sixty) days of the date of publication or broadcast, under penalty of declaring a statute of limitations on the right.

§3. The right of reply also expires with initiation of criminal or civil action being taken against the newspaper, publication, broadcast station or news agency as a result of the publication or broadcast in question.

Article 30: The right of reply consists of:

I.   the publication of the reply or rectification of the offended party, in the same newspaper or periodical publication, in the same position, in the same font as the item that gave rise to the complaint, in normal editions and on normal days.

II.   In the broadcast of the written reply or rectification of the offended party on the same radio station and in the same program and time-slot in which the item that gave rise to the complaint was broadcast, or

III.  In the broadcast of the written reply or rectification of the offended party by the news agency to all the news media to which the item that gave rise to the complaint was transmitted.

§1. The reply or request for rectification must:

a) in the case of a newspaper or periodical publication be the same size as the offending piece, with the guarantee that it be a minimum of 100 (one hundred) lines;

b) in the case of a broadcast be given the same air time as the original broadcast, lasting for at least one minute, even if the latter had been shorter;

c) in the case of a news agency be the same length as the item in question.

§2. The limits mentioned in the previous paragraph shall prevail with regard to each reply or rectification separately, and shall not be accumulated.

§3. In the case of a newspaper, publication or news agency, the reply or rectification shall be published or transmitted free of charge, the cost being borne by either the offending or offended party, depending on the court ruling, if the responsible party is not the editor or managing editor of the newspaper nor one with a labor contract with him, nor manager or owner of the news agency, nor similarly has an employment relationship.

§4. In broadcasts, if the person responsible for the broadcast in question is not the director or owner of the licensee company nor has a labor, advertising or program production contract, the cost of the reply shall be borne by the offending party or the offended party, depending on the judge?s decision.

§5. In the cases set out in §§ 3 and 4, the companies may take action to obtain payment of the cost of publication or broadcast of the reply from the party found to have been responsible.

?§6. Even though the responsibility for the offense lies with third parties, the company loses the right to repayment mentioned in § 5 if it fails to transmit the reply in the time stipulated in Article 31.

§7. The deadlines for reply or rectification mentioned in § 1 may be extended up to double, so long as the offended party pays the excess over normal rates charged by the company operating the news outlet.

§8. The publication or broadcast of the reply or rectification made with comment amounting to a counter reply guarantees the offended party right to a new reply.

Article 31: The request for a reply or rectification shall be acted on:

I.   within 24 hours, by the newspaper, broadcast station or news agency;

II.   in the next edition in the case of a non-daily periodical.

§1. In the case of a broadcast station, if the program in which the broadcast was made is claimed not to be a daily one, the station shall heed the demand to publish it in the same program, in the case of a requested rectification, broadcasting in the first program after receiving the request.

§2. If, under terms of Article 30, §§ 3 and 4 the company is liable for the cost of the reply, it may make the publication or broadcast subject to proof that the offended party had filed lawsuit against it, the time frames mentioned in item I and § 1 applying, beginning at the time of such proof.

Article 32: If the request for reply or rectification is not acted on within the time mentioned in Article 31, the offended party may file lawsuit for its publication or broadcast.

§1. For this purpose, a sample of the written matter in question, if applicable, shall be submitted, or the broadcast in question shall be described, along with the text of the reply or rectification, typewritten and in duplicate, requesting the criminal judge to order the party responsible for the new medium to carry out the publication or broadcast in the time frame mentioned in Article 31.

§2. In the case of a broadcast company, the offended party may in addition file lawsuit claiming the right to make the rectification or reply personally within 24 hours from the date of filing the suit.

§3. Once the reply or rectification is received, the judge shall, within 24 hours, summons the party responsible for the news medium to state within the same amount of time the reasons why it was not published or broadcast.

§4. In the following 24 hours, the judge shall give his ruling, whether the responsible party has heeded the summons or not.

§5. The court order to publish or broadcast shall be made under penalty of fine, which may be increased by the judge to double the following amounts:

a) Cr$10.00 (ten cruzeiros) per day of delay in publication in the case of newspapers and news agencies and in those of broadcast stations if the program is a daily one;

b) the equivalent of Cr¢10.00 (ten cruzeiros) per intervening day between the editions or programs in the case of a non-daily publication or program.

§6. In the case of a broadcast station, the judge?s ruling shall determine who is responsible for payment of the cost of the broadcast and shall set the rate for it.

§7. The judge?s ruling may be appealed.

§8. Refusal or delay in publishing or disseminating the reply, where applicable, amounts to a criminal offense in itself and makes the responsible party liable for double the penalty imposed for the original offense.

§9. The reply whose dissemination has not been carried out under terms of this law shall be considered to be non-existent.

Article 34: Publication or broadcast of the reply or rectification shall be denied:

I.   when it is has no connection with the acts mentioned in the publication or broadcast to which a response is sought;

II.   when it contains libelous, defamatory or slanderous expressions about the newspaper, periodical, broadcast station or news agency concerned or about those responsible for the news medium, or third parties;

III.  when it is about official acts or publications, except where the rectification comes from a public authority;

IV. when it refers to third parties in circumstances that give them equal right of reply;

V.  when its purpose is literary, theatrical, artistic, scientific or sports criticism, unless it contains libel, defamation or slander.

Article 35: Publication or broadcast of the reply or request for rectification shall not be detrimental to any action by the offended party to determine criminal and civil liability.

Article 36: The reply of the offended party shall also be carried in at least one of the newspapers, periodical publications or broadcast media that had carried the original item, preferably the one of highest circulation or ratings. In this case, the expense shall be borne by the original publisher, payable promptly.

It is important to note the contents of Article 58 of Electoral Law Nº 9,504/97, which requires application of a right of reply during election campaigns in the case of defamatory or inaccurate statements being made.

Article 58: Following nomination of candidates at conventions, the right of reply is guaranteed for the candidate, party or coalition concerned, even indirectly, in the event that a statement that is libelous, defamatory or slanderous or is made knowing it to be untrue is transmitted by any news medium.

§1. The offended party or his legal representative may request the Electoral Tribunal for exercise of the right of reply in the following time frames starting from the time of the offense:

I.   24 hours when it involves free electoral broadcast time;

II.   48 hours when it involves normal broadcast time of a radio or television station;

III.  72 hours when it involves print media;

§2. On receipt of the request, the Electoral Tribunal shall immediately notify the offending party to present his defense within 24 hours, with the ruling to be made within a maximum of 72 hours from the time of the filing of the request.

§3. The following rules must be observed in the case of right of reply to a broadcast offense:

I.   in print media:

a) the request shall be presented with a copy of the publication and/or text to be responded to;

b) if the request is granted, dissemination of the reply shall be made in the same media outlet, of the same size, in the same position, on the same page and in the same format and with other same specifications as the item that gave rise to the complaint up to 48 hours after the ruling or, in the case of a non-daily publication, in the next issue;

c) at the request of the offended party, publication of the reply shall be made on the same day of the week on which the offense was committed, even if that is more than 48 hours later;

d) if the offense is committed on a day and at a time that makes its rectification impossible to meet the aforementioned deadlines, the Electoral Tribunal will order the immediate dissemination of the reply:

II.   in normal radio and television program schedules:

a) the Electoral Tribunal, in light of the request, shall immediately order the person responsible for the broadcast station that produced the program to deliver, within 24 hours under pain of the penalties set out in Article 347 of Law Nº 4,737 of July 15, 1965, Electoral Code, a copy of the broadcast tape, which shall be returned after ruling;

b) the person responsible for the broadcast station, on being notified by the Electoral Tribunal or informed by the plaintiff or his representative by certified mail of the request for reply, shall preserve the recording until a final decision in the case;

c) if the request is granted, the reply shall be made within 48 hours after the decision, in the same time-slot as the offense and for not less than one minute;

III.  in the free electoral air time;

a) the offended party shall use for the reply the same amount of time as for the defense, but not less than one minute.

b) the reply shall be broadcast in the time-slot set aside for the offending party or coalition responsible for the offense and shall be confined strictly to the facts of the matter;

c) if the time-slot set aside for the part or coalition responsible for the offense is less than one minute, the reply shall be put on air as many times as necessary to come up to this length;

d) if the request for reply is granted, the broadcast station or the party or coalition concerned must be immediately notified of the decision, indicating in which daytime or nighttime period it is to be aired, the reply to be at the beginning of the party or coalition?s program;

e) the tape containing the reply shall be delivered to the broadcast station within 36 hours from the time of learning of the decision, to be broadcast in the party or coalition?s next program in the same time-slot that the offense was committed;

f) if the offended party is a candidate, party or coalition has used the time provided without replying to the facts broadcast in the offense, an amount of time equal to the respective electoral program shall be subtracted; in the case of third parties, these shall be liable to suspension for a similar amount of time in any new request for reply and to a fine of 2,000 to 5,000 UFIRs.

§4. If the offense is committed on a day and at a time that make its reparation impossible within the time frames stipulated in the foregoing paragraphs, the reply shall be broadcast at the times that the Electoral Tribunal determines;

§5. There shall be recourse to appeal to higher courts on the ruling on exercise of the right of reply within 24 hours of its publication in the court record, guaranteeing the ability to offer counter arguments within a similar period of time of filing notice of appeal.

§6. The Electoral Tribunal shall give its ruling within 24 hours, observing the stipulations in lines d) and e) of item III of §3 for the restitution of time in the case of the appeal being upheld.

§7. Non-compliance in full or in part with a ruling granting right of reply shall render the offender liable to payment of a fine of 5,000 to 15,000 UFIRs, double in the case of a repeat offense, with prejudice to what is stipulated in Article 347 of Law Nº 4,737 of July 15, 1965 (Electoral Code).

§8. The publication or broadcast of the reply or rectification together with a comment amounting to a counter-reply shall give the offended party the right to a new reply.

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