Unauthorized Biography Bill avances in Congress

iStock_000018979505XSmallWe have discussed in detail here the Unauthorized Biography bill which aims to avoid the prohibition of release of works based on unauthorized biographies of public persons such as books or movies.

The news is that the bill was approved by the House of Representatives last April 02, 2013 and will now go to the Senate for approval.

The Bill approved by the House of Representatives is the same we discussed earlier and thus the difficulties we pointed still persist. In sum, the current Civil Code has a title which regulates personality rights. Section 20, which is considered overprotective, stipulates that:

Section 20. Unless authorized or if necessary for the enforcement of Justice or the maintenance of the public order, the publication of written texts, the transmission of words, or the publication, exposition or utilization of the likeness of a person may be forbidden, upon the person’s requirement and without prejudice to the indemnification that may be applicable, if such use affects the person’s honor, reputation or respectability, or if such use is for commercial purposes.

Sole Paragraph. In case of deceased or absentee, his/her spouse, ascendants or descendants will have legitimacy to request such protection.

This section has been used to block biographies which the heirs consider to be detrimental to the image of the deceased or in some cases of living persons who are the subject portrayed . It is not a purely theoretical problem and in fact there were a number decisions from courts blocking books such as biographies of performer and composer Roberto Carlos and soccer player Garrincha.

The answer to this problem as proposed in the bill is to add a paragraph 2 which will state that “the mere absence of authorization does not prevent the publication of images, written texts and information with biographical objective of a person whose personal, artistic or professional trajectory has a public dimension or is inserted in facts of society’s interest.”

This may not solve all the problems as we pointed in our past post. Section 21, which is not affected by the Bill, protects privacy and this still may be used to try to bar if the work in question goes beyond the scope of public acts.

Further, the proposed change aims to open to the public the lives of public figures but what about persons who have not decided to become a “public personality” but whose lives in some point or another have become linked with the public figure?

Take for example the case of the movie about the life story of a popular drug dealer named João Estrela which was covered by one of our posts here. The State Courts of Appeal of Rio de Janeiro have considered that the movie explored the privacy of a secondary character with intimate remarks about his sexual life and the producers were condemned to pay indemnification based on damages to the moral rights of the plaintiff.

We still expect a lot of litigation if this bill is approved until parameters are set by the courts.

We will keep you posted.

Rodrigo Borges Carneiro

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