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Publicly Available Published by De Gruyter Mouton February 16, 2016

Defending laughter: an account of Brazilian court cases involving humor, 1997–2014

  • João Paulo Capelotti

    João Paulo Capelotti

    PhD candidate in the Faculty of Law from the Federal University of Paraná [Universidade Federal do Paraná – UFPR], Brazil. Master of Law by the same university. Associate member of the International Society for Humor Studies. Member of the Research Group on Private Comparate Law [Núcleo de Direito Privado Comparado], UFPR. Lawyer.

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From the journal HUMOR

Abstract

Once any content is published it is subjected to public scrutiny, and tort actions may be brought by people allegedly offended by it. In most of the western world, there are no prior administrative restraints on freedom of speech, but courts can analyze complaints about various forms of expression and, in cases where the content is deemed abusive, award financial compensation to the victim. Naturally, humorous content is not excluded from this principle, and humorists can therefore face lawsuits. The present study researched all competent courts in Brazil where electronic records were available for the period 1997–2014 in order to present an overview of such cases, focusing on the identity of the claimants and the success of their lawsuits. Analysis of these data allowed some trends and inconsistencies in how Brazilian judges deal with cases involving humor to be identified. The first observation is that courts tend to favor humor that is closer to journalistic comment, i. e., humorous pieces relating to subjects of public interest. Humor, however, is not and cannot be limited to this particular type of humor. The second observation is that many judges punish humor that in their view seems to be “exaggerated,” disregarding the fact that exaggeration and unreasonableness are trademarks of humor. Thus, conservative and highly personal positions on the part of judges create an environment of uncertainty surrounding cases involving humor and freedom of speech. It is suggested that better attention to precedents set by Brazilian Higher Courts and a degree of common sense (including a sense of humor) on the part of the judiciary would help overcome judicial bias against humorists.

1 Introduction

Jokes, cartoons, movies, plays, TV programs and many other artistic creations can hurt a person’s feelings and spoil their image, entitling the offended party to damages. The premise here is exactly the same as those governing press liability: responsibility follows the exercise of freedom of speech. We can say, write, print and post whatever we want, as long as we remain liable for such content. However, while it is intuitive that humor is inherently exaggerated and mostly non-serious and thus should be interpreted according to these parameters, this is not what the 486 Brazilian judicial decisions collected as part of this study demonstrate.

This article describes how the data were collected and refined and analyzes the treatment of humor-related cases in Brazilian courts in the light of these data. While the initial finding is that the majority of decisions are humor-friendly – that is, the courts saw no wrong in humorous content considered illegal by an offended person – in fact the scenario is not so positive when some statistical distortions are corrected. The data also show that most lawsuits were triggered by people involved in the public arena, such as politicians, police officers and public officials. Finally, the article investigates how successful each type of plaintiff was in his legal battle against humor.

This is, to the author’s knowledge, the first study of its kind in Brazil or elsewhere, although scholars such as Laura E. Little (2011) have undertaken comprehensive jurisprudence research in both Australian and American Courts, successfully tackling topics that are also discussed in this article. Nevertheless, Prof. Little’s work did not mention how many decisions her study was based on or who the claimants were and did not include a quantitative analysis like that presented here.

This article is not intended to be definitive or exhaustive, and the data presented here warrant further interdisciplinary analysis, especially from sociological and anthropological perspectives. Given the constraints of space, it is also not possible to explore other legal topics, such as comparisons with other judicial systems or the details of Brazilian law governing freedom of speech and damages. An outline of the relevant principles and rules extracted from the Constitution and the Civil Code is provided, but the article focuses primarily on describing what humorists do from the courts’ point of view.

2 Methodology

2.1 Courts researched

The conclusions below are a result of extensive research on the websites of all Brazilian Courts with civil jurisdiction. These include the Supreme Court, the Superior Court of Justice and the twenty-seven Courts of Appeals (one for each State and one for the Federal District).

The Supreme Court is where strictly constitutional issues are decided, whereas the Superior Court of Justice is the final court for non-constitutional appeals. Freedom of speech is a constitutional guarantee, but damages are regulated by the Civil Code. Humor-related cases can therefore be dealt with in both courts. Although the number of cases that reached these highest courts in the period studied was not large, the importance of the cases that did should not be underestimated (although in many cases, as will become evident later, the relevant precedents were ignored by lower courts).

It was not possible to obtain many district court judges’ decisions, since these are rarely available on the courts’ websites and are generally not as accessible as collegiate decisions from higher courts. As it was not possible to access the judgements in every court, the search was limited to databases that represented equivalent jurisdictions in all federal units, namely, those of the Courts of Appeals.

Finally, as the study focuses on how civil courts deal with cases related to abusive humor, criminal, labor and military courts were deliberately excluded. However, the study does include cases involving labor issues that were presented to civil courts and concerned predominantly civil matters (freedom of speech) rather than the relationship between employer and employees.

2.2 Research method

Because of the limitations of space, the article will neither discuss the nature of humor nor attempt an exhaustive definition. For the purposes of this research, an intuitive and general idea of humor was adopted, namely, any form of expression that was intended to provoke laughter, regardless of whether the creator of the humorous content was a professional humorist, a journalist or a professor.

Each court database was searched for keywords related to humor, such as “humor” [“humor”], “humoristic” [“humorístico”], “comedy” [“comédia”], “comedian” [“comediante”], “cartoon” [“charge”], “joke” [“piada”], “sarcasm” [“sarcasmo”] and “irony” [“ironia”]. The research was conducted between May and November 2014 and covered cases that were presented to the courts between 1997 and 2014.

Quotations in this article from court decisions and other legal texts with the exception of the excerpt from the Brazilian Constitution in Section 4.1 are translations by the author. The original texts are available in the appendices, and a list of websites that were searched is provided in the references.

2.3 Limitations of this research

It is important to emphasize that, despite our efforts, there is a strong likelihood that not all decisions were discovered as some courts may not have made their proceedings available online (especially for older cases). Moreover, it should be noted that the conclusions of this study are applicable only to cases dating back to 1997, constituting a relatively recent snapshot of Brazilian court proceedings. Finally, some humor-related cases that did not contain the keywords used or were not properly indexed by the search engines of the court websites may have been overlooked.

It should also be noted that this article does not seek to present a global view of how humor is handled by courts all over the world, as the diversity of cultures and legal systems makes such a task virtually impossible. Therefore, the conclusions drawn from the data are, in principle, applicable only to Brazil. Occasional comparisons with other legal systems, particularly in North America, were made merely to elucidate specific points in the discussion by contrasting a country in which public debate is held in much higher regard with another in which concepts of honor are considered to merit much more recognition and protection.

2.4 Refining the data

Each decision initially counted as one, regardless of the number of plaintiffs. Thus, for example, if two people felt offended by a cartoon about them and decided to sue the newspaper together in a single action for which a single decision was rendered, the case counted as one.

Only decisions on merit were considered, which means that only decisions that analyzed whether humor was legally right or wrong were selected. If, for example, a comedian was sued but the case was dismissed because of a procedural issue, the decision was not examined for the purposes of this study.

2.5 Organizing the data

The decisions were categorized as having a “positive” or “negative” result. “Positive” cases were those in which the court saw no wrong in the humorist’s work. “Negative” cases were those in which monetary compensation was granted by the court to the plaintiff because of alleged excess in the exercise of freedom of speech. The result was considered negative even if the humorist was able to reduce the amount of damages on appeal. Therefore, positive results were only those cases in which no damages were awarded.

3 Overview of the cases

Using the methods described above, 486 cases related to humor in Brazil between 1997 and 2014 were identified. The data (summarized in Table 1) suggest that the vast majority of cases (82.3%) had a favorable outcome for the humorists.

Table 1:

Cases related to humor in Brazilian courts, 1997–2014.

Total no. of casesPositive resultNegative result
486400 (82.3%)86 (17.7%)

However, a significant number of the cases identified were mass actions, in which lawsuits were used as means of protest by police officers who felt insulted by criticism of their use of force. It was therefore necessary to refine the data in order to obtain a clearer perspective on the legal implications of humor in Brazil.

3.1 Significant exceptions, Case 1

In 1997, some police officers extorted and humiliated poor citizens, even killing one of them, during a roadblock in a slum called Favela Naval, in the borders of Diadema, a city in the metropolitan area of São Paulo, Brazil’s largest city. This incident was captured on film by one of the residents, and the images spread rapidly around the world (see, for example, The New York Times’ report in http://www.nytimes.com/1997/04/02/world/outcry-over-police-brutality-in-brazil.html [accessed 18 November 2014]).

Shortly thereafter, humorists used this news for satirical purposes. Casseta e Planeta: Urgente!, one of the most prestigious TV comedy shows at that time, created a sketch ridiculing the situation, with the intent of criticizing the officers’ corruption and the unnecessary violence they inflicted on the people they were meant to serve.

Several police officers from Diadema, however, understood the TV show as a deliberate threat to their image and honor. In order to maximize damages, the suits were not filed by the police officers’ association or as a mass action, but by more than one hundred officers individually, according to the media group’s lawyer (Casseta: TV Globo se livra de indenizar policial de Diadema [Casseta: TV Globo exempted from indemnifying police officer in Diadema]. Conjur. 1 September 2001. http://www.conjur.com.br/2001-set- 01/juiz_livra_tv_globo_indenizar_policial_diadema. [accessed 18 November 2014]). When these claims were rejected by the lower courts, 76 identical appeals were lodged in the Court of Appeals for the State of São Paulo.

3.2 Significant exceptions, Case 2

The same strategy was adopted a few years later in the State of Rio Grande do Sul. A cartoon published by the largest newspaper in that state portrayed a dog walking on its hind legs, leading an angry police officer on all fours by the collar. The illustration was a response to the excessive violence used to curb popular demonstrations a few days earlier. Once again, the police officers claimed injury and filed suit, leading to 203 separate actions.

3.3 Adjusted data

In both these cases, the Courts of Appeals in São Paulo and Rio Grande do Sul acknowledged the intended criticism of official violence, as well as the absence of direct injury to any individual. The humorists were considered to be making a general complaint about the institutional culture of excessive force and corruption among local police. The courts unanimously rejected all appeals by the officers, although no procedural measures (such as the penalties in the Civil Procedure Code for contempt of court) were taken against them, which would theoretically have been possible since they were using the process as a means of protest.

As the reasons given by the courts in these cases were essentially identical, and since the lawsuits were (in this author’s judgment) intended to harass the press rather than to present a specific legal argument to the court, it seems reasonable to conclude that considering each of these appeals (76 in São Paulo and 203 in Rio Grande do Sul) as a separate case would inevitably lead to distortions in our conclusions. These actions were therefore re- classified for the purposes of this analysis as two separate cases, rather than 279.

Even with this adjustment, the results are positive for humor, although the picture is considerably less favorable. Of the total of 209 cases, 123 (58.85%) were decided in favor of humorists, including the multiple cases filed by police officers. The 86 lawsuits with negative results for humorists now comprise 41.15% of the total, as shown in Table 2.

Table 2:

Cases related to humor in Brazilian courts, 1997–2014 (refined data).

Total no. of casesPositive resultNegative result
209123 (58.85%)86 (41.15%)

3.4 Two cases from the highest courts

Faced with this multitude of decisions, it may be useful to focus on two cases in particular that help to provide an insight into Brazilian judicial thinking about humor.

3.4.1 Case 1

In 2010, changes in the Elections Code prohibited satire, photomontages and parodies involving candidates for the presidency, state government, Senate and House of Representatives. The association of TV and radio broadcasters appealed to the Supreme Court, where the judges eventually decided that the law was incompatible with freedom of speech as guaranteed by the Constitution. The decision highlights the role humor plays in conveying important information, especially during elections, when citizens are invited to make choices about their government.

The opinion of the court was written by Judge Carlos Ayres Britto, who emphasized the key role of the press as a shelter for critical thought. Beginning with this premise, the court defined humor as a special way of delivering news and opinions. Hence, if criticism is normally allowed (even if full of sarcasm, irony and derision), it should not be forbidden during the election season.

Critical thought is an integral part of full and faithful information. It is part of a style of press-making that is conventionally called humor (the central issue of this lawsuit). Humor, according to an inspired definition attributed to Brazilian writer Ziraldo, is not just a way of provoking laughter. That might be called comicality or any other equivalent term. Humor is a critical view of the world, and laughter the side effect of the unexpected discovery of the truth that it unveils. (I quote from memory.) Hence, the expected social usefulness of journalistic effort lies in the fact that it far outweighs the occasional excesses of a particular piece of writing, a particular cartoon or caricature, a particular show.

[…]the freedom to which any free press is entitled should not be curbed during the election season since such freedom applies to every time, place and circumstance. […] It would be nonsense to argue that the freedom of the press, which has a relationship of mutual dependence with democracy, should be curbed precisely when democracy reaches its climax or most luminous point. […] If TV and radio broadcasts can produce and transmit cartoons, satires and humorous shows involving parties, pre-candidates and authorities in general outside the election season, they can also do so during the election season. (Brazilian Supreme Court. Action requesting declaration of unconstitutionality n. 4451. Majority opinion written by Judge Carlos Ayres Britto. Decided on 2 September 2010).

Although the definition of humor espoused by the court is controversial (as it associates humor with the discovery of an unsuspected truth, relegating laughter by itself to the realm of “comicality”), the decision considers the right to make humor to be an inherent aspect of freedom of speech. Nevertheless, it also presents humor as a form of information equivalent to others in illuminating the affairs of State. It is intuitive, however, that humorists are not restrictive when it comes to choosing targets.

3.4.2 Case 2

The broad implications of humor and the importance of identifying the real target of a humorous piece constitute the most important lessons to be learnt from the other case judged by a higher court.

As mentioned in Section 2.1, the Superior Court of Justice is the highest court for non-constitutional issues. In 2005, the court was presented with an appeal by two women whose ancestor was mentioned in a satirical magazine in an article that was clearly intended to poke fun at another magazine dedicated to celebrity gossip. Nancy Andrighi, the judge who wrote the majority opinion, underlined that

It is noticeable that the medium is explicitly satiric, which is clear from the basic editorial

line to provoke laughter through comparison with other widely distributed magazines that specialize in making public the private life of so-called celebrities […]

[…] it is essential to note that the castle built by the appellants’ ancestor was only the instrument of the joke and not the final object of ridicule, as the comparison intends to demonstrate how laughable – in the writers’ view –the editorial line of the other magazine is.

[…] The parallel question proposed by the appellants, regarding the ‘level’ of the humor endorsed by the magazine, which is considered ‘vulgar’, is not a matter for debate by the Judiciary, since it is not this court’s role to analyze critically the talent of the humorists involved. The decision must be limited to determining whether there was or was not offense to the moral rights of the people affected by the article’s content. (Brazilian Superior Court of Justice. Special appeal n. 736.015. Majority opinion written by Judge Nancy Andrighi. Decided on 16 June 2005).

This decision, like the previous one, praises humor as an efficient tool for criticism – in this case, not of the State, but of society itself – as long as the real subject of the joke can be identified. Besides, it states, courts should decide only whether humorous content is offensive on moral and legal grounds, not aesthetic ones. Unfortunately, as will be shown in the next section, many Brazilian judges do not follow this guideline.

4 Topics and themes identified

4.1 Who brings lawsuits against humorists

In almost all of the cases identified, the plaintiff was the person who felt offended by a humorous piece. The three exceptions to this will now be discussed.

In 2009, a District Attorney in the city of São Paulo sued a beer company for alleged offensive advertising that portrayed women as sexual objects in a humorous way. The court found that, despite the tastelessness of the content, the advertisement was not illegal (Court of Appeals for the State of São Paulo. Appeal n. 9000005-45.2009.8.26.0100. Opinion written by Judge Enio Santarelli Zuliani. Decided on 26 April 2012).

However, in 2012, the same court denied an appeal by a comedian against a decision that compelled him to withdraw all the DVDs of a stand-up comedy show in which he allegedly offended people with mental health issues. The claimant in this case was an association of parents of children with physical or psychological impairments (Court of Appeals for the State of São Paulo. Interlocutory appeal n. 0038052-51.2012.8.26.0000. Opinion written by Judge Gilberto de Souza Moreira. Decided on 21 March 2012).

The third exception was the case mentioned in Section 3.3, in which the Supreme Court discussed the right to satirize politicians. The action was brought by the TV and Radio Broadcasters Association. There was no particular humorous piece or humorist involved in the case.

In all the other cases, the claimants were the people who felt personally offended or injured by the humorous content.

For the purposes of this analysis, in order to include the exceptional cases, the targets of humor involved in lawsuits were identified rather than the claimants and were classified as belonging to one of the following categories: celebrities, entities/companies, journalists, judges, the mentally disabled, ordinary people, police officers, politicians, public officials, referees and unions/union leaders. [1]

In Table 3 all the cases are classified according to the target of the humorous content.

Table 3:

Targets of the humor in the court cases found.

Target of the humorNumber of casesPercentage (%)
Celebrities183.7
Entities/companies153.08
Journalist10.22
Judges40.82
Mentally disabled10.22
Ordinary people449.06
Police officers29260.08
Politicians9018.51
Public officials81.64
Referees40.82
Union/union leader81.64
Women10.22

More than half of the lawsuits were initiated by police officers, and the other categories account for the remaining cases (40%).

However, if the 279 cases brought by police officers are considered as two cases in order to correct the distortion mentioned in Section 3.2, the result is slightly more complex, as shown in Table 4.

Table 4:

Targets of the humor in the court cases found (refined data).

Target of the humorNumber of casesPercentage (%)
Celebrities188.61
Entities/companies157.18
Journalist10.48
Judges41.91
Mentally disabled10.48
Ordinary people4421.05
Police officers157.18
Politicians9043.06
Public officials83.83
Referees41.91
Union/union leader83.83

In this analysis, politicians play a leading role in the battle against humorists and are responsible for 43% of the cases, followed by ordinary people, who account for 21% of the cases. This relatively large proportion may reflect the wide variety of people included in this category. These two categories are followed by celebrities (8.6%), police officers and entities/companies (7.2% each).

None of these lawsuits would have happened without legal support. The Brazilian Constitution ensures freedom of speech as long as that does not violate rights surrounding the existence of a person, such as privacy, honor and image:

Section 5. […]

IV – the expression of thought is free, and anonymity is forbidden;

V – the right of reply is ensured, in proportion to the offense as well as compensation for property or moral damages or for damages to the image;

[…] IX – the expression of intellectual, artistic, scientific and communication activities is free, independently of censorship or license;

X – the privacy, private life, honor and image or persons are inviolable, and the right to compensation for property or moral damages resulting from their violation is ensured

(Brazilian Constitution. http://www.stf.jus.br/repositorio/cms/portalstfinternacional/portalstfsobrecorte_en_us/anexo/constituicao_ingles_3ed2010.pdf. (accessed 23 July 2015).

As conflicts occur frequently, and as the Constitution does not offer conclusive answers, lawsuits must be solved by the courts on a case-by-case basis.

To complicate matters, there are at least two sections in the Civil Code that are closely concerned with the so called “rights of personality”:

Section 12. A person may demand an end to a threat or injury to his personal rights and may claim damages, regardless of other sanctions provided by law.

Section 20. Unless authorized or necessary for the administration of justice or the public peace, disclosure of a person’s writings, transmission of their words or publication, exhibition or use of a person’s image may be forbidden, upon his request and without prejudice to any compensation applicable if they damage his honor, good repute or respectability or if they are used for commercial purposes.

(Brazilian Civil Code. http://www.planalto.gov.br/ccivil_03/leis/2002/L10406.htm. [accessed 23 November 2014]).

Judges are aware of constitutional clauses regarding freedom of expression, but it seems that Brazilian tradition has supported such freedom only so long as it is inoffensive. This is in marked contrast to legal precedents in other countries, such as the case of Hustler Magazine, Inc. v. Falwell, decided by the United States Supreme Court in 1988. In this case, Hustler publisher Larry Flynt satirically suggested that conservative preacher Jerry Falwell had had sex with his own mother. Flynt eventually won the case. Chief Justice William Rehnquist wrote for the court: “The art of the cartoonist is often not reasoned or even-handed, but slashing and one-sided […, but] from the viewpoint of history it is clear that our political discourse would have been considerably poorer without them” (485 U.S. 46).

In Brazil, there is clearly respect for the principle of freedom of speech – as the decisions in Section 3.3 make clear – but it seems to be conditional to a greater degree on other values, especially the honor and good image of the offended party.

4.2 Who wins the lawsuits – and laughs last

Table 5, based on Tables 2 and 4, also uses the terminology presented in Section 2.5: the judgment is considered positive if it is humor-friendly and negative if any kind of monetary compensation was ordered to be paid by the humorist.

Table 5:

Success rate of humorists in the court cases according to the targets of the humorous piece.

Target of the humorTotal of casesCases with positive resultPercentage (%)
Celebrities18844.44
Entities/companies151066.66
Journalist100
Judges4250
Mentally disabled100
Ordinary people442454.54
Police officers151173.33
Politicians905561.11
Public officials8450
Referees4125
Union/union leader8337.5

The most successful cases for humorists were those involving police officers, entities/companies and politicians. This may indicate that humor is considered most defensible when it is more related to topics of public interest – that is, criticizing people and facts regarded as important for society. Perhaps this is why the success rate of cases brought by celebrities is so low: apparently, from the courts’ point of view, there is no public interest in mocking private citizens who happen to be famous, while it is clear that criticizing the behavior of public figures such as governors, police officers and non-governmental organizations can be regarded as a means of political participation and expression.

This hypothesis, extracted from the analysis of the data presented above, seems plausible not only in Brazil. Commenting on the US Supreme Court doctrine on the First Amendment, Laura E. Little (2011: 119) emphasizes the court’s concerns that issues of public interest should be the subject of robust debate and its interpretation that the protection afforded by the law of defamation is limited to public officials and public figures alone.

Indeed, philosophers of law like Owen Fiss do not consider freedom of speech an empty guarantee, but rather a guarantee of liberty to discuss topics that interest everyone. In his words (1996: 3), “Speech is valued so importantly […] not because it is a form of self-expression or self-actualization but rather because it is essential for collective self-determination. Democracy allows people to choose the form of life they wish to live and presupposes that this choice is made against a background of public debate.” It may be that a similar philosophy underlies many of the decisions covered in this study.

In many cases, the criticism was considered too harsh. The decisions acknowledged the right to freedom of speech and the importance of discussing the topics in question but determined particular expressions of humor to be excessively offensive (probably based on aesthetic grounds) and consequently awarded financial compensation to the claimant.

An example of this kind of decision came from the Court of Appeals for the State of Rio de Janeiro. In 2004, the court rejected the appeal by a local newspaper that published a cartoon in which the former mayor of a small town was depicted in a toilet, and his administration was compared to excrement. Although the court was aware that there was a clear purpose of political criticism, in the judges’ view it should have been expressed in a “reasonable” way. The judges declared that creativity and freedom of speech must be staunchly preserved but cannot protect humorists from the effects of injuring a person’s honor. According to the judges, “Each and every excess must be purged, precisely in the name of healthy criticism, well-done satire and refined irony that do not offend whomever is targeted by them” (Court of Appeals for the State of Rio de Janeiro. Appeal 2004.001.03529. Majority opinion written by Judge Helena Bekhor. Decided on 1 June 2004). [2]

Although refined and witty humor could theoretically be called better, since it suggests a higher degree of artistry, such classification undermines the insight and the quick timing – not to mention the need to speak to the broadest audience – associated with humor that may be more vulgar or commonplace. Demanding that humor should always adhere to standards of “healthy criticism, well-done satire, [and] refined irony” limits humorists’ art and freedom of expression and assumes that the tastes of the intended audience are the same as those of the judge.

The same “good taste” approach was adopted in a case involving the host of a comedy show and a famous, beautiful singer who happened to be pregnant. In order to highlight her good shape a few weeks before the child was due, the comedian said that he would have sex with her, even though this could potentially disturb the baby. Although he neither swore nor used the “F word”, he did use a rude expression in Portuguese for sexual relations. A few minutes later, the social networks were already discussing whether the statement was offensive or just humorous, and it was announced shortly afterwards that the singer, her husband and the unborn child were suing the comedian for damages.

The Court of the City of São Paulo refused to quote the remark under dispute in the decision but had no doubt that it was a statement of “tacky sexuality”, an “insult” delivered in vulgar language with the potential to “annihilate the morale of the family.” The humorist appealed, but the majority of the appellate judges upheld the previous decision and even increased the damages awarded. The prevailing opinion endorsed a fairly restrictive conception of humor:

Documents attached to the case demonstrate that many people from different sorts of media noticed and stated that the defendant overstepped the limits of acceptability by expressing himself in the way questioned by the claimants. It can be deduced from the criticism levelled that the limit of the above-mentioned humor is its funniness. Then, if humor is not funny, if it offends rather than amuses, it does not accomplish its function of causing laughter. […] [The controversy is about] an extremely short speech, nevertheless loaded with highly negative information, degrading the images of the woman and the child, and, accordingly, of their husband and father, all of them affected in such a way that their dignity as human beings was compromised. […] It is not possible to impose on the claimants acceptance of what the defendant calls a joke, because if the latter had the right to express himself in the way he eventually did, it is clear that the claimants had the right to feel offended by the mockery, sustaining that their honor was at risk because of the defendant’s derogatory words.

(Court of Appeals for the State of São Paulo. Appeal n. 0201838-05.2011.8.26.0100. Majority opinion written by Judge Joao Batista Vilhena. Decided on 6 November 2012).

Although the decision raises several interesting questions, such as whether the right to feel offended by a joke inevitably accompanies the right to tell one, perhaps the most controversial point it raises is the patriarchal assumption that a joke involving sex with a woman was as offensive to her husband as it was to the woman herself, if not more offensive. It is questionable whether the same considerations would apply in a judgment in other cultures and legal systems.

Besides, as the minority opinion highlights, the context of the joke must be analyzed, specifically (i) the fact that it was a live remark, made immediately after a previously recorded report in which the singer herself was interviewed by another comedian on the program who also made jokes involving pregnancy and sexual pleasure, with which the singer consented, joining in and laughing; and (ii) the fact that the comedian-turned-defendant was clearly neither being serious when he stated that he would have sex with her nor praising pedophilia or rape, as the plaintiffs argued. His remark was merely a tacky one made for a comic purpose. If a wisecrack does not succeed in provoking laughter, his failure does not automatically make his comment a serious one. The majority opinion, apparently, would tolerate rude jokes if they were funny, attaching civil liability to the audience’s uncertain appreciation of a joke. If a comedian makes a certain statement, it is in the expectation of producing laughter. While he may not always succeed, failure cannot change the nature of the statement.

These two decisions, among the eighty-six with negative results for humor, have in common a conception of humor as something that must be harmless to be legal. But even a cursory review of the history of humor shows that scatology, perversity, blasphemy and all sorts of taboos have always been central to humorous discourse and date back to classical societies such as those of Rome and Greece (Minois 2003: Ch. 1–3). It is no different in our times. Restricting humor to tame and tasteful commentary necessarily deprives it of some of its inherently wild, subversive nature. Moreover, to do so would be to turn the courts into humor critics, entirely ignoring the injunction of the superior courts to determine cases involving humor on moral and legal grounds.

These “taste issues” were not identified in other comparative legal studies of humor. Laura E. Little’s study showed the American courts’ concerns about what was being expressed (an opinion or a fact) when setting liability, demonstrating that this dichotomy is not sufficient to solve all cases, and, furthermore, that the First Amendment protects factual inaccuracy if it is not accompanied by actual malice, as seen in New York Times Co. v. Sullivan (2011: 120). However, as Hustler Magazine, Inc. v. Falwell demonstrates, the bad taste of the Larry Flynt advertisement was never in question. The court’s reasoning centered on recognition of the advertisement as clearly humorous (and therefore non-factual) and the importance of humor for the debate on public issues involving public figures.

5 General conclusions

Just as when playing heads or tails it is difficult to know what the outcome will be, so it is hard for Brazilian lawyers to predict the final results of cases involving freedom of speech. As shown in Table 2, the number of cases with judgments favorable to humorists slightly exceeds the number of unfavorable judgements. However, those figures do not necessarily mean that Brazil is a country which values humor on any topic. It is not possible to make the generalization that it is likely that lawsuits involving humor will have a humor-friendly outcome. Rather, the outcome is dependent on the target and content of the humorous piece.

As the cases involving police officers and elections suggest, satire, jokes, cartoons and remarks about various categories of people are normally seen as harmless. When specific individuals from these categories claim to be injured by such humor, their complaints are usually regarded as baseless and their claims for damages denied. For a target to be entitled to damages, the offense must be concrete and specific. There are some exceptions, however, such as the case involving the DVD with a joke about children with cognitive impairment, in which the parents’ association obtained a decision that the DVD should be withdrawn from the market. It is likely, nevertheless, that this decision is more a consequence of the controversial (and perhaps morally offensive) nature of the joke than of the idea that all individual members of the target group could be offended.

The results also show that people who are more connected with the public sphere are expected to show higher levels of tolerance towards criticism. This applies both to “serious” criticism – leveled by the press, the ombudsmen and so forth – and to criticism with a comic accent. The findings show that politicians and police officers have low success rates in lawsuits against humorists, having lost more than 50% of such cases. On the other hand, while public figures are not overwhelmingly successful in suppressing humorous criticism, their persistence – and, more importantly, their occasional victories – suggest a high level of resistance to criticism of any sort, even when it is related to issues of public interest.

This theory has its limitations, however. For example, celebrities are also part of what could be called the public sphere. Nonetheless, most of their lawsuits have a negative outcome for humorists, perhaps because the simple fact of being famous is not directly associated with the public interest – in other words, celebrities do not improve the life of the polis. Sadly, this way of thinking turns judges into censors whose tastes determine what is relevant to the interests of society as a whole. This raises obvious questions about whether it is appropriate for the courts to act as arbiters of public discussion. Humor can involve almost any topic, and it is not clear that only humor about “serious” topics should be protected. Besides, given the role of celebrities in shaping public opinion, separating them from other public figures seems in many respects artificial.

The topic of “seriousness” also emerges in a significant number of decisions that treat humor as mere impoliteness, and jokes simply as ways of causing offense. Naturally, nothing is funny for everyone all the time, and some attempts at causing laughter fail miserably, but this does not necessarily mean that an aesthetically unsuccessful humorous piece should be illegal. The decisions discussed in Section 4.2 clearly adopt a narrow understanding of humor. They are not sensitive to the context or the comic intention; instead, they regard the cartoon and the wisecrack as deliberate, reprehensible offenses. In other words, the decisions regard humor as a serious topic that should be treated like any other form of expression and hence should be subject to legal protections against libel and slander.

In summary, courts are apparently applying the principles that govern press liability to decide cases involving humor, despite the fact that truth, reasonableness and public interest may not be characteristics of many humorous pieces. Apparently, it is still hard for Brazilian Courts to tolerate humor outside the narrow context of moderate criticism of public affairs. Consequently, less conventional forms of humor are excluded from the domain of free speech – in direct contradiction to Constitutional guarantees – and in the process the fact that humor can be directed against topics both banal and profound, and controversial and commonplace with the same eagerness and derision is ignored.

Some questions naturally arise. For example, what impact would a magazine like Charlie Hebdo have had without its ferocity? Would such degrees of sarcasm and satire be tolerated by Brazilian judges? What kind of humor would be considered legally fair? Would it be funny afterwards?

The U.S. Supreme Court has acknowledged the sharp and even-handed character of humor, as shown in Hustler Magazine, Inc. v. Falwell. Even though Brazilian Courts have not yet come that far, the precedents discussed in Section 3.4 emphasize some important values lower courts should consider when deciding cases in which humor is involved. First, humor is clearly covered by the Constitution’s freedom of speech clauses and therefore cannot be restricted or prohibited from commenting on any aspect of life in society. Second, judges should not analyze humorous content from the bench as art connoisseurs, defining what is funny and what is not, what should be covered by humor and what should not; their role is to identify whether or not there is a legal wrong. If these directions from the Superior Courts had been closely followed by the Courts of Appeals, building what jurists call “jurisprudence” on the issue, most of the lawsuits discovered in this study would not even exist – for instance, politicians would not seek recourse from the courts whenever they are criticized by a cartoon. Doing away with cases that clearly have no constitutional merit would allow for a clearer and more fruitful discussion of difficult questions about the line dividing humor that is considered inoffensive and thus protected by the law from humor that is offensive to society or individuals.

The Brazilian provisions regarding the preservation of honor, image and respect are indeed peculiar and somewhat intriguing, especially when compared with Anglo-Saxon legal systems. Given that such provisions are mandatory and have as much constitutional status as those regarding freedom of speech, it seems that Brazilian courts are required to debate such issues in a much more pondered manner, as there are more interests to accommodate in the verdict. Besides, it should be borne in mind that, under Brazilian law, only crimes in which human life is threatened are subject to trial by jury. Therefore, defamation cases and all those involving tort are decided by single judges rather than a collegiate of ordinary citizens. Last but not least, Brazilian jurisprudence considers that in cases of moral offense the onus is on the claimant to demonstrate the fact (i. e., the offense), which in humor cases is the joke, the cartoon and so on. Because hurt feelings are not verifiable, they are simply presumed, as is the stain on someone’s reputation. Financial losses arising from the offense, however, must be proved. The American system, on the other hand, requires evidence of the damage to reputation.

These legal filigrees undoubtedly have a bearing on the data collected as part of this study, which cannot therefore be considered to reflect how humor is handled worldwide. However, while some generalizations, such as the preference for humor related to public issues, can indeed be made, perhaps the most important conclusion that can be drawn is that cross-cultural differences not only are noticeable in the way humor is appreciated, but also play a particularly crucial role in a court’s understanding of what is a legal wrong and what is merely a joke.

About the author

João Paulo Capelotti

João Paulo Capelotti

PhD candidate in the Faculty of Law from the Federal University of Paraná [Universidade Federal do Paraná – UFPR], Brazil. Master of Law by the same university. Associate member of the International Society for Humor Studies. Member of the Research Group on Private Comparate Law [Núcleo de Direito Privado Comparado], UFPR. Lawyer.

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Appendices

The original versions of the texts quoted in the article

Brazilian Supreme Court. Action requesting declaration of unconstitutionality n. 4451. Majority opinion written by Judge Carlos Ayres Britto. Decided on 2 September 2010

“Pensamento crítico, diga-se, que é parte integrante da informação plena e fidedigna. Como é parte, acresça-se, doestilo de fazer imprensa que se convencionou chamar de humorismo (tema central destes autos). Humorismo, segundo feliz definição atribuída ao escritor Ziraldo, que não é apenas uma forma de fazer rir. Isto pode ser chamado de comicidade ou qualquer outro termo equivalente. O humor é uma visão crítica do mundo e o riso, efeito colateral pela descoberta inesperada da verdade que ele revela (cito de memória). Logo, a previsível utilidade social do labor jornalístico a compensar, de muito, eventuais excessos desse ou daquele escrito, dessa ou daquela charge ou caricatura, desse ou daquele programa. […] a liberdade de imprensa assim abrangentemente livre não é de sofrer constrições em período eleitoral. Ela é plena em todo o tempo, lugar e circunstâncias. […] Seria até paradoxal falar que a liberdade de imprensa mantém uma relação de mútua dependência com a democracia, mas sofre contraturas justamente na época em a democracia mesma atinge seu clímax ou ponto mais luminoso. […] Se podem as emissoras de rádio e televisão, fora do período eleitoral, produzir e. veicular charges, sátiras e programas humorísticos que envolvam partidos políticos, pré-candidatos e autoridades em geral, também podem fazê-lo no período eleitoral.

Brazilian Superior Court of Justice. Special appeal n. 736.015. Majority opinion written by Judge Nancy Andrighi. Decided on 16 June 2005

“Nesse aspecto, nota-se que o meio de comunicação é explicitamente satírico, o que se evidencia – se não por menos – pela proposta editorial calcada na possibilidade de fazer rir a partir da comparação com outra revista de grande circulação, cujo ‘mote’ é publicizar a vida íntima daquilo que se convencionou chamar de ‘celebridades’ […]

[…] é essencial notar que o castelo construído pelo antepassado das recorrentes foi, apenas, o instrumento da piada e não o alvo final da ridicularização, porquanto a comparação visa demonstrar o quão risível é – na visão dos articulistas – a proposta editorial da outra revista.

[…] A questão paralela posta pelas recorrentes, a respeito do ‘nível’ do humor praticado pelo periódico – apontado como ‘chulo’ – não é tema a ser debatido pelo Judiciário, uma vez que não cabe a este órgão estender-se em análises críticas sobre o talento dos humoristas envolvidos; a prestação jurisdicional deve se limitar a dizer se houve ou não ofensa a direitos morais das pessoas envolvidas pela publicação.”

Brazilian Constitution

“Art. 5º […]

IV - é livre a manifestação do pensamento, sendo vedado o anonimato;

V - é assegurado o direito de resposta, proporcional ao agravo, além da indenização por dano material, moral ou à imagem;

[…] IX – é livre a expressão da atividade intelectual, artística, científica e de comunicação, independentemente de censura ou licença;

X – são invioláveis a intimidade, a vida privada, a honra e a imagem das pessoas, assegurado o direito a indenização pelo dano material ou moral decorrente de sua violação.”

Brazilian Civil Code

“Art. 12. Pode-se exigir que cesse a ameaça, ou a lesão, a direito da personalidade, e reclamar perdas e danos, sem prejuízo de outras sanções previstas em lei.”

“Art. 20. Salvo se autorizadas, ou se necessárias à administração da justiça ou à manutenção da ordem pública, 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, a boa fama ou a respeitabilidade, ou se se destinarem a fins comerciais”

Court of Appeals for the State of Rio de Janeiro. Appeal 2004.001.03529. Majority opinion written by Judge Helena Bekhor. Decided on 1 June 2004

“Todo e qualquer excesso deve ser depurado, justamente em nome da crítica sadia, da sátira bem feita, da fina ironia, que não ofendem a quem delas seja objeto ou pelas quais seja visado.”

Court of Appeals for the State of São Paulo. Appeal n. 0201838-05.2011.8.26.0100. Majority opinion written by Judge Joao Batista Vilhena. Decided on 6 November 2012

“Ora, pelo quanto consta do processo, diversas pessoas de variadas mídias perceberam e afirmaram ter o réu ido além do limite do aceitável ao se manifestar na forma nos autos questionada, e, na média de tais críticas, se extrai que o limite do humor antes referido é a graça. Logo, quando o humor seja sem graça, mais ofenda que divirta, não cumpre sua função: o fazer rir. […] [Trata-se] de brevíssimo discurso, todavia, carregado de informações extremamente negativas, que aviltam a imagem tanto da mulher, como da criança, e, reflexamente, do esposo e pai destas, todos atingidos de forma a se ter por comprometida a sua dignidade enquanto pessoas humanas. […] Não se pode impor aos autores a aceitação daquilo que o réu intitula piada, pois se este teve o direito de se expressar da forma como o fez, evidente que os autores têm o direito de se sentirem humilhados com a galhofa, entenderem comprometida a sua honra em virtude das desairosas palavras do réu.”

Published Online: 2016-2-16
Published in Print: 2016-2-1

©2016 by De Gruyter Mouton

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