B r a z i l

22. LEGISLATIVE BILLS THAT WOULD AFFECT THE PRESS

There is a very controversial bill currently in the National Congress. It reads as follows:

Article 1. Expression of thought, creation, expression, receipt and dissemination of information through any of the social communication media is free and not subject to censorship.

§1. For purposes of this law:

I.   special communication media are considered to be radio, television, film, public computer networks, news agencies, newspapers, magazines and similar that use printing processes, graphic representation, filming or recording, or that engage in the transmission of radio waves and signals through antennas, satellites, fiber optics, cable or similar relays with the purpose of publicly exhibiting, disseminating, expressing or transmitting sounds, images, information, news or any kind of message.

II.   regarded as public, even if confined to subscribers, is the transmission of sounds and images that can be received by devices available on the open market or are accessible to the public, even if the receivers need decoders or require cable connection or other special technical specifications.

Article 2. Seizure of a newspaper or magazine and suspension of a radio or television broadcast is prohibited, except in those cases provided for in special laws or when it involves anonymous or clandestine publications or broadcasts.

§1. Considered to be anonymous is a publication or broadcast without an identified author and clandestine a publication or broadcast whose medium of communication is not registered in the normal way under the law.

§2. Seizure shall always be carried out on court order with notification to the Public Ministry.

§3. The judge shall in such cases act with the speed required by the reasons for the seizure.

Article 3: The duties of the social communication media shall be:

I.   to verify the accuracy of the information to be disseminated;

II.   to rectify reports when they are inaccurate;

III.  not to make discriminatory references to race, religion, sex, sexual preference, mental illness, political conviction or social state;

IV. to guarantee the right to reply;

V.  to observe ethical means in newsgathering;

VI. not to identify victims of sexual abuse or child or youth offenders;

VII.            to defend the public interest and democratic order;

VIII.            to prominently report on any sentence handed down for violation of this law;

IX.  to provide constant service of attention to the public;

X.  to publish, at current commercial rates, paid and bylined works that are sent in, except in the case of affront to basic human rights and democratic order or offense to the company owning the news outlet and its directors or editors.

Article 4: In the registration of the articles of incorporation of media companies and any amendments thereto there shall be observed, in addition to the requirements under the respective laws, the stipulations of this law and the Federal Constitution concerning the ownership, management and intellectual orientation of companies by Brazilians.

§1. Obligatory shall be the inclusion in the relevant registry, along with any changes, of the names of the shareholders or bondholders of the proprietor company, the holders of ordinary voting shares, the names of directors and officers.

§2. When the social communication medium has juridical persons as shareholders it shall be required to list in its articles of incorporation and subsequent amendments all its shareholders and administrators.

§3. Every printed newspaper shall have a Responsible Editor in charge of deciding the orientation of content. 

Article 5: The right to compensation for actual and moral damages or damage to the good name of any individual or juridical person by a publication or broadcast is guaranteed, the action having to be taken within 6 (six) months from the date of publication under penalty of statute of limitation.

Sole paragraph: Equivalent to an article is an interview whose authorship can be proven.

Article 6: Sentencing shall take into account:

I.   negligence or intent, whether a first or repeat offense and the financial status of the offending party, preserving his solvency;

II.   the primary coverage area of the news outlet and its audience in the case of an electronic medium, and circulation when it is a print medium;

III.  the magnitude of the damage to the good name of the offended party, bearing in mind his professional, financial and social standing.

Sole paragraph: The initial petition for indemnity shall specify in the request the criteria used in the headline of the article, to serve as a parameter for setting the size of the award.

Article 7: Civil liability under this law shall correspond:

I.   to the author of the offense in the case of paid works, texts and articles bylined by a person with legal standing not employed by the company owning the media outlet;

II.   jointly the media company or news agency, the author of the bylined piece, when an employee of the company, and the relevant editor, provided that he is identified in the charge in the event that a non-bylined piece is published in specialized sections or supplements in print media;

III.  jointly the company owning the media outlet or news agency, the author of the offense identified by voice or image, when an employee of the company, except in the case of anchor or presenter with no editorial role whose responsibilities are shown to be confined to reading or oral reproduction of the item in question, and the responsible editor when the broadcast is an editorial, news item or non-attributed opinion in radio and television broadcasts;

IV. the producer, in the case of obligatory broadcast programs and in the cases set out in Article 23 of Law Nș 8,977 of January 6, 1995.

§1. In the case of offenses made in interviews or articles bylined by person with no legal standing, the company owning the news outlet shall be jointly liable.

§2. The author, exceptionally and if he so wishes, has the right to refuse to put his byline on a piece when he understands that it may be changed in editing, altering the essence of his work.

§3. For the purposes of this law, byline means the personal identification of the author by voice or image.

§4. In the case of liability, the journalist, having proved that he refused to be bylined, may adduce authorship to the news outlet;

§5. The journalist, in view of his having refused to be bylined, may not suffer any punishment on the part of the company owning the news outlet.

Article 8: In civil action, the Civil Code and Code of Criminal Proceedings shall be applicable in an ancillary manner.

Article 9: Criminal offenses with regard to the exercise of freedom of expression and of information are:

I.   to libel someone, imputing to him a fact defined as a criminal offense;

Penalty: community service of 6 (six) months to 1 (one) year and a fine of 2,000 to 50,000 reals;

II.   to defame someone, imputing to him a fact that offends his reputation;

Penalty: community service of 2 (two) to 10 (ten) months and a fine of 1,000 to 50,000 reals;

III.  to slander someone, offending his dignity or decorum;

Penalty: community service of 30 (thirty) days to 6 (six) months and a fine of 1,000 to 25,000 reals;

IV. to disseminate untruthful information that can bring the concept or credit of a juridical person into question;

Penalty: community service of 2 (two) months to 1 (one) year and a fine of 2,000 to 50,000 reals;

V.  to libel, defame or slander the memory of a deceased person;

Penalty: community service of 30 (thirty) days to 1 (one) year and a fine of 2,000 to 50,000 reals;

VI. to distribute through a news agency a piece of work that amounts to a criminal offense under terms of this law, reproduced by any graphical, mechanical or electronic process;

Penalty: community service of 30 (thirty) days to 6 (six) months and a fine of 1,000 to 25,000 reals;

VII.            to violate the intimacy or privacy of someone:

Penalty: community service of 30 (thirty) days to 6 (six) months and a fine of 1,000 to 25,000 reals;

§1. Sentencing shall take into account the intensity and whether it is a repeat offense, the defendant?s criminal record and the magnitude of the damage done to the good name of the offended party.

§2. In ordering payment of a fine, if the judge finds the maximum penalty to be ineffective because of the defendant?s financial resources, he may increase it by up to twice the amount provided for under this law.

§3. The minimum fine shall be reduced by up to two-thirds if payment of it would cause the defendant and his family to go hungry.

§4. Retraction, accompanied by publication of a reply, if the victim accepts this and the judge holds it to be sufficient, extinguishes punishability but shall not be considered to constitute any settlement between the author and the accused after sentence is pronounced.

§5. Having ruled for the plaintiff, the judge shall order the dissemination, at the expense of the offending party, of the retraction or the sentence with the same prominence as the offending publication or broadcast, so long as this was requested in the initial complaint.

§6. Community service will be changed to imprisonment if, without justification, it fails to be carried out, the conversion provided for in the sentence then having to be put into effect.

§7. In calculating prison sentence, time served in community service will be taken into account, observing a minimum balance of 30 days? imprisonment.

Article 10: Criminal liability set in the law shall fall to:

I.   the editor-in-chief or the person effectively responsible, when the publication or broadcast is a non-bylined editorial, news item or opinion piece;

II.   the sectional editor identified in the petition in the case of a non-bylined item published in specialist sections or parts of a newspaper, magazine and other print media;

III.  the author of the offense in radio, television, documentary or newscast exhibited in a public place, when identified by voice or image, except in the case of an announcer or presenter with no editorial function and whose responsibility can be shown to be restricted to reading or orally reproducing the offending material;

IV. the editor in charge of programming in a radio or television station that does not have a responsible journalist or other person described as such at the opening or close of the broadcast.

V.  the author of an article whose byline is part of a given or family name or is a pen-name, stage name or nickname.

§1. The professional shall have a right to a collective or individual byline on material he has produced.

§2. Exceptionally and if he so wishes the professional may or may not exercise the right to a byline, being able to refuse it when he understands that the material has undergone substantive modification during editing and such refusal shall not incur any kind of penalty on the part of the company.

§3. For the purposes of this Article the communication media shall include in the case file or, if the case, at the program opening or close the names of those persons responsible for the non-bylined material.

§4. No author of an article or news item nor any communication medium may be compelled to indicate the name if its informant or news source and silence shall not be used in any criminal action against the accused as a presumption of guilt or aggravating circumstances.

§5. The right not to reveal a source does not diminish civil and criminal liability nor burden of proof.

Article 11: A professional or communication medium shall not be liable when an offense against intimacy, privacy, good name and self-image of the person derives from information obtained from a confirmed public authority that can be identified or when the matter is dealt with in administrative or court proceedings in which disclosure of the source is not a specific legal demand.

Article 12: The dissemination of a photograph, image or sound does not constitute a violation of intimacy, privacy and self-image of a person when taken or recorded in a public place, whether or not for payment.

Article 13: The graphical reproduction of a person, in part or full-body, in a conventional, artistic or cartoon format is not an offense to the self-image of that person so long as it does not express or suggest a condition or situation amounting to libel, defamation or slander.

Article 14: Criminal action shall be taken:

I.   on a complaint by the offended party, his legal representative in the case of incapacity, or by his surviving spouse, parent, child or sibling when the offense was directed at a deceased person;

II.   by the Public Ministry when the offended party is a public agency or body, by representation;

III.  by the Public Ministry on orders of the Minister of Justice when the crime is committed against the president of the Republic, president of the Federal Senate, speaker of the Chamber of Deputies, a justice of the Supreme Court, a foreign head of state or government or his diplomatic representatives;

§1. The right to file complaint or make representation shall lapse if not exercised within 6 (six) months of the date of the publication or broadcast;

§2. The time frame referred to in the foregoing paragraph shall be shortened:

a) by a court order for publication of a reply or request for rectification, whether this is denied or heeded;

b) by a court ruling of competency of the responsible party to stand trial.

Article 15: In cases of libel and defamation, truth shall be admitted as a defense against a public authority or servant, public body or agency, the judge being prohibited for refusing to admit it on any grounds.

Sole paragraph.         Truth is inadmissible as a defense if in fact the offended party has been acquitted without right of appeal of the matter attributed to him.

Article 16: The offending party may not, under pretext of producing proof of the truth of the matter, introduce any document or testimony or call upon any fact, person or situation that is not strictly relevant to the subject of the action.

§1. The judge shall decide what is inadmissible evidence;

§2. Non-compliance with the terms of this Article shall constitute an aggravation of the main offense;

§3. The disclosure of any document, testimony, fact or situation that is not relevant to proof of truth shall be subject to the penalties set out in this law.

Article 17: The action contemplated in this law shall be subject to a state of limitations of 4 (four) years from the date of the offense, respecting any curtailment there might be.

Article 18: Social communication media shall be required to keep on file the texts and recordings of their programs for 30 (thirty) days.

§1. The party considered to have been offended may, before the deadline set out in the introduction to this Article, call upon the judge to notify the communication media concerned that it must retain with due care the recording that is the subject of the litigation.

§2. The social communication media concerned shall keep a book, which it will open and initial on each page, to be produced in court when required, containing a list of the pen-names, followed by the signatures, of the people whose works have been published.

Article 19: Applicable as ancillary to criminal action for the offenses defined in this law are the provisions of the Penal Code and the Code of Criminal Procedure.

Article 20: Without prejudice to the actions provided for in this law, the right to proportionate reply to the offense is guaranteed.

§1. The right to proportionate reply consists of:

I.   the publication of the reply or rectification on the same page, in the same print medium, in the identical size and fonts for the body text and headline as the piece that gave rise to the complaint and in an issue with the normal press run;

II.   the broadcast of the reply or rectification at the same length in the same time-slot and in the same program of the station that gave rise to the complaint, with a guaranteed minimum of one minute;

III.  the transmission of the reply or rectification of the same size or duration by the news agency to all the news media to which it had sent the offensive item, the latter being required to publish or relay it in the terms of the foregoing paragraphs, at the expense of said news agency.

§2. The publication or broadcast of the reply or rectification shall be null and void for legal purposes if by the addition of comment it amounts to a counter-reply and it must be executed again in compliance with the requirements of this law.

§3. The reply shall always be free of charge.

Article 21: On an opportunity to reply being required by the offended party, the social communication medium shall provide it:

I.   within 3 (three) days in the case of a daily newspaper or broadcast;

II.   in the next edition in the case of a weekly or monthly periodical;

III.  in the next program in the case of a weekly broadcast.

Article 22: If the social communication medium denies the request for reply, the persons with legal authority to take criminal proceedings may file suit within 30 (thirty) days of such tacit or express denial, under penalty of its lapsing.

§1. The court order for reply or rectification shall be accompanies by:

I.   the original issue of the newspaper that has committed the offense;

II.   if it be the case, the issue containing the unsatisfactory reply or comment on the reply amounting to a counter-reply;

III.  in the case of radio and television, a recording of the broadcast or broadcasts;

IV. the text of the reply in duplicate, signed by the party concerned.

§2. Once the judge has received the request for reply or rectification, he shall within 2 (two) business days summons the social communication medium to testify, within the same amount of time, as to the reasons for not heeding the request for reply or rectification.

§3. The judge shall make a ruling within 2 (two) business days from the end of the time granted to the social communication medium, whether or not it has heeded the request to give its reasons for non-publication of the reply or rectification.

§4. If no unofficial request has been made by the offended party, the time frame referred to in the introduction to this Article shall begin on the date of the publication or broadcast.

§5. Non-compliance with the time frame set out in this Article shall entitle the offended party the right to go to the relevant court for a ruling on the matter within 24 (hours).

Article 23: If the reply or rectification is granted by court order, the judge may warn in his ruling that each day of delay in making the publication or broadcast shall incur a fine.

Sole paragraph: Any appeal shall not suspend the effects of the judgment, except where the person responsible for the matter that gave rise to the proceedings obtains from a higher court a ruling suspending the publication of the reply or rectification until a final decision is reached.

Article 24: Reply or rectification of the facts shall be denied by the judge:

I.   when it has no connection with the facts referred to in the publication or broadcast;

II.   when it contains expressions offensive to the author or medium or those responsible for it;

III.  when it refers to third parties in a manner that gives rise to an equal right of reply;

IV.    when it breaks the law.

Article 25: When the offense is committed in paid matter, there shall be granted, in the same space and at the cost of the offending party, the right of reply to the offense, the court being the vehicle for receipt of payment of costs, at regular commercial advertising rates.

Sole paragraph: If the order granting right of reply is reversed, the monies paid what was held to be the offending party shall be reimbursed by what was held to be the offended party.

Article 26: Conflicts between freedom of information and the rights of the individual, among them the right to intimacy, privacy, good name and own image, shall be resolved in favor of the public interest, which information is intended to serve.

Article 27: In the production of news, the social communication media having observed with regard to controversial matter the plurality of versions, hearing the parties involved in the polemic on current events of public interest, and citing any denials.

Sole paragraph: any party with a relevant role in the reported events who feels harmed by the omission may demand the new outlet to immediately report his position.

Article 28: Any advertisement not otherwise clearly identifiable as such shall be identified by the words advertisement,  advertorial or paid announcement in capital letters and in a visible place in the case of the print media, by an indication to one side of a videotape in letters of a size that makes it easy to read in the case of television, or by an indication by the presenter in the case of radio.

Sole paragraph: For the purposes of this law, the definition of advertisement shall include texts of third parties provided for publication against payment, in such case it being required that the individual or juridical person responsible for payment shall be indicated.

Article 29: The terms of this law shall be applicable to those found guilty of the crimes defined in Law Nș 5,250 of February 9, 1967, the judge being required to substitute the prison term for those set out in Article 9, in proportion to the remainder of the unserved time.

Article 30: Newspapers, magazines and other print media shall be required to submit, within 5 (five) days, copies of their issues to the National Library and the official archives of the States and Federal District.

Article 31: The competent jurisdiction for the hearing of any of the actions set out in this law shall be the location of the social communication medium responsible for the publication or of its branches.

Article 32: This law shall enter into force on the date of its publication.

Article 33: Law Nș 5,250 of February 9, 1967, sole paragraph of Article 26 of Law Nș 7,170 of December 14, 1983, sole paragraph of Article 337 of Law Nș 4,737 of July 15, 1965, and other non-conforming regulations are hereby repealed. 

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