Britto: 'Biography is not an invasion of privacy'

247 - Former Supreme Court president Carlos Ayres Britto writes in his column in O Globo, this Wednesday the 13th, defending the publication of biographies without prior agreement. But he is in favor of the author being punished judicially if they write defamatory statements. Read his article:

A biography is not an invasion of privacy.

In dictionary terms, "bio" refers to life, just as "grafar" refers to writing. Therefore, to write a biography is to document the life of another person. More precisely, to write a biography is to learn about the life trajectory of a third person for the purpose of documenting and disseminating it. The life of the subject of the biography can be: a) in isolation or with oneself (intimacy); b) life in interaction with close people based on affection and trust (privacy); c) life with human beings in general (generic social life).

Furthermore, writing a biography is an activity that involves research, interviews, analysis, methodical reporting or schematic description, and publication. It is an intellectual activity, insofar as it demands a type of mental elaboration that people commonly call "burning the midnight oil" or "using one's gray matter." It requires the biographer to have "access to information" and its subsequent dissemination, "manifestation of thought," and, naturally, "expression of intellectual activity (...) and communication." These are rights constitutionally qualified as "fundamental" and readily identified as contents of the principle of "freedom." Freedom, moreover, expressly granted under the clause of inviolability.

It so happens that it was also under the hallmark of fundamentality and inviolability that our Constitution conferred the subjective right to "intimacy," "private life," "honor," and "image" of individuals. This creates a conflict of rights that obliges the interpreter to understand how the Constitution itself reconciled the two categories of provisions. It is a kind of choice between right and right, on the assumption that the Constitution is intended to be applied in all its commands. But it is applied in a way that sacrifices the scope of this or that right which, without such a reduction in content, would end up nullifying the applicability of the other, or even many others. This is the case with prior censorship or the advance authorization of anyone who sees themselves as the target of a biographical undertaking, for the obvious reason that: a) prior censorship is to lock thought, information, and all forms of intellectual, scientific, artistic, and communicative expression in a single dungeon; b) Prior authorization to be the subject of a biography is a poorly disguised autobiography or an exogenous imposition of direction on the biographer. Therefore, for the proper reconciliation of things, the concept of intimacy and private life can only translate to the right to free enjoyment. Nothing more than that. But free enjoyment, in the sense of not being hindered, not interrupted, not obstructed in the very course of its realization.

Now, writing a biography is not a description of a future life. It is an account of a life that has already happened or of the already exhausted enjoyment of the right to intimacy, private life, and generic social life. It is merely a verbal portrait of the way in which the right to enjoyment has already been consummated. A way to which the biographer had access. It has nothing to do with intercepting telephone calls, using a telephoto lens in private premises, hiding under other people's beds, hiding in other people's closets, or any other form of interruption, disturbance, or obstruction of the enjoyment in question. However, if the biographer descends into the realm of fabrication, or the collection of data so maliciously distorted as to offend the honor of the subject, in addition to causing them material, moral, or reputational damage, what can happen in legal terms? Well, what can happen is nothing more than the applicability of constitutional norms that speak of the right of reply and compensation. Alongside those provisions that legitimize the Penal Code to criminalize slanderous, defamatory, or injurious conduct.

Outside of this legal perspective, I believe that the way in which the Constitution was intended to be applied conciliatorily to such sensitive issues would be frustrated.