Public Lives as Personal Assets, the Trial of Biography: The Year in Brazil

THE LEGAL BACKGROUND

On June 10, 2015, the Brazilian Supreme Court declared unconstitutional the necessity of prior authorization to publish biographies. This date marked the end of a long-lasting battle between some biographers and their subjects. Before this date, an anachronistic and ambiguous set of civil laws and constitutional norms tied the legitimacy of a biographic work to the previous consent of subjects of the biography or their relatives. Granted, these norms and laws had a convincing reason to exist, but their consequences indicated a significant obstacle for the activity of biographers, both in the commercial and academic realms.

The return to democracy intended to put an end to two decades of a military dictatorship’s austere censorship on the media, cultural and artistic manifestations, and political activities. The new constitution promulgated in 1988 allows the exercise of free speech and especially enables a historical revision of the previous two decades. Section IX of Article 5 allows for the freedom of intellectual, artistic, and scientific activity independent of censorship or license. However, Section X states, “são invioláveis a intimidade, a vida privada, a honra e a imagem das pessoas, assegurado o direito á indenização pelo dano material ou moral decorrente de sua violação” (the privacy, private life, honor and image of persons are inviolable, and the right to compensation for material or moral damages resulting from their violation is guaranteed). Nevertheless, the Constituição establishes that “a divulgação de escritos, a transmissão da palavra, ou a publicação, a exposição ou a utilização da imagem de uma pessoa poderão ser proibidas a seu requerimento e sem prejuízo da indenização que couber, se lhe atingirem a honra, boa fama ou a respeitabilidade, ou se destinarem a fins comerciais” (the dissemination of texts, or the publication, presentation, or use of the image of a person may be forbidden if it harms the honor, the good reputation, or respectability of a person, and if it is intended for commercial purposes) (Novo Código Civil). The conflicting directions of these two legal instruments were enough to allow state and supreme courts to rule that it was admissible to censor biographies, a practice that appears to be in conflict with the constitutional promises of freedom of speech.

It was not only the restrictions to publish but also the access to research material and assembling of information that posed an obstacle to the work of biographers. During the harsh years of the authoritarian regime, personal data was collected and stored to monitor individuals with any detectable political activity against the regime. This database was confidential and used against citizens who had no rights to contest or defend themselves against it. These political archives were finally accessible after the insertion of the habeas data in the constitution of 1988. The constitution then determined the right of access to classified information about an individual but only by the persons themselves. The solution to biographers to collect data about their subjects came with the Law of Access to Information of 2011. Intended to grant access to any information under the care of public archives, this law was at first celebrated but, later, proved to restrict biographers’ use of information. The law states that personal information needs to be treated with transparency and with respect for one’s privacy and reputation. As for how to enforce these ideas, the law states that a researcher needs consent from the subject of the biography or a legal representative to access this information. These three judicial codes determined how a biographer could collect and gather information for a biographical project.

The case of Estrela Solitária: Um Brasileiro Chamado Garrincha, by Ruy Castro, published in 1995, is emblematic of this shift in copyright. This soccer player thrilled the stadiums and appeared in two world cups (1958 and 1962), and was deemed one of Brazil’s best players, perhaps even better than Pelé. However, his alcoholism led him to a premature death in 1983. Days before the release of Estrela Solitária...