Veja magazine does not have to compensate Lula for portraying him as a prisoner, says the Court of Justice.

By Thiago Crepaldi, from the magazine Consultor Jurídico

In today's dynamic society, where information circulates through social networks, providing fertile ground for the creation of parodies, cartoons, and "memes," it is natural that an influential public figure would be the object of deconstruction of their image by news outlets. This was the understanding reached on Tuesday (October 18th) by the 10th Chamber of Private Law of the Court of Justice of São Paulo when it denied an appeal by former president Luiz Inácio Lula da Silva in a lawsuit for moral damages filed against Veja magazine, published by Editora Abril.

Images of Lula as a prisoner circulated even before he was facing any criminal charges.

The former president filed the lawsuit alleging that the cover of issue 2.450 of Veja magazine, which began circulating on November 1, 2015, which featured a photo of him in prison garb alongside mentions of people convicted in corruption cases, was untrue and aimed at damaging his honor and image, as well as disrespecting institutions and the Constitution.

In the first instance, the court of the 5th Civil Court of Pinheiros, in São Paulo, dismissed the lawsuit, finding that the publishing house — defended by Alexandre Fidalgo, from the law firm Fidalgo Advogados — did not commit any illegal act or exceed the limits of freedom of the press.

The former president appealed, arguing that the publication had abused its right to freedom of the press, since there were no legal proceedings against him at the time of the events. He also alleged obstruction of his right to present evidence.

The judge rapporteur for the appeal in the 10th Chamber of Private Law of the TJ-SP (Court of Justice of São Paulo), Ronnie Herbert Barros Soares, also did not see any excess in the journalistic material that would cause damage to the image of former president Lula.

According to the magistrate, the scope of application of personality rights for all public officials is reduced, especially the more important the position they hold, he said, quoting a passage from the opinion of Justice Carlos Ayres Britto of the Supreme Federal Court in the judgment of ADPF 130.

Soares cites legal scholars on the subject in his opinion and says that, "in the present day, when technology greatly facilitates communication and the emergence of 'artists', the so-called social media are flooded with photomontages, 'memes', parodies, imitations, etc., which lend themselves to the exaltation or ridicule of people in a broad sense, but with particular incidence on those who dominate daily life" and that "the press is not separate from this practice".

He further states that it is not the press's role to be impartial, a role that belongs to the judge. "From a subjective point of view, a magazine is not required to maintain neutrality. Impartiality is an attribute proper to judges and, although there is sometimes an attempt to create an image of impartiality in media organizations, this is not their premise. On the contrary, what we see today is the taking of positions, the expression of personal or institutional opinions by journalists, the development of chronicles, that is, the transmission of qualified information."

The judge concludes that the fact that, at the time, there was no criminal action against the former president does not negate the veracity of the information presented in the report, "which clearly conveys the idea that the author maintained links with all those people investigated for serious offenses, some of whom had already been convicted in a previous trial and were serving their sentences. There was no accusation of a crime against the author," he emphasizes.

Thus, the sentence was upheld in its entirety. Justices Carlos Alberto Garbi and João Batista Paula Lima also participated in the judgment. The vote was unanimous.

Appeal 1011567-56.2015.8.26.0011