A Brazilian court’s decision to sentence a comedian to prison for offensive remarks about a congresswoman could have a chilling effect on free speech, Human Rights Watch said today.
On April 10, 2019, a federal judge sentenced Danilo Gentili, a political conservative, to 6 months and 28 days in prison for a video he posted on social media three years ago. In the video, he ripped up a notice he received from the Chamber of Deputies asking him to take down offensive tweets he had written about Maria do Rosário, a Workers’ Party member of Congress, stuffed the pieces in his underwear, pulled them out, and then mailed them back, making obscene comments about her.
“No one should go to prison just because they said something offensive, no matter how distasteful their remarks,” said Maria Laura Canineu, Brazil director at Human Rights Watch. “Instead, people who want to go to court over injuries to their reputation should be required to seek redress through civil law.”
The federal judge found that the video includes “highly offensive and reproachable content that makes very clear his intention to offend” the congresswoman. Gentili remains free while he appeals the sentence.
Criminal defamation laws are incompatible with the obligation under international to protect freedom of expression, Human Rights Watch said.
Brazil´s criminal code includes the crime of injúria, for which Gentili was found guilty, which penalizes offenses to a person´s “dignity or decorum;” the crime of difamação, defined as an accusation that harms a person´s reputation; and the crime of calúnia, defined as falsely accusing someone of a crime. Gentili was convicted of injúria.
Brazil should eliminate those three crimes from the criminal code. Offended parties should be required to seek damages through civil litigation, and no one should be imprisoned for what they say.
The UN special rapporteur on the promotion and protection of the right to freedom of opinion stated in 2000 that imprisonment should never be applied as a punishment for defamation and recommended that states repeal their criminal defamation laws and rely on civil defamation laws. The special rapporteur has emphasized that states should take particular care to ensure that defamation laws—civil or criminal— “reflect the principle that public figures are required to tolerate a greater degree of criticism than private citizens.”
The Principles on Freedom of Expression adopted by the Inter-American Commission on Human Rights in 2000 assert that protection of the reputation of public officials should be guaranteed only by civil sanctions, and not criminal ones.