I take it you mean by 'serious negative effects' something like being unable to work due to the trauma the experience caused, right?
Ok. Let me put it this way: Even a physological bruise is sufficient to justify some sort of payment or punishment. I am not saying that the harm must be as big as a broken arm.
How are you defining a 'bruise'? When it comes to a physical assault you can actually see the bruises that the assault caused. How do you determine if someone was genuinely 'bruised' psychologically? How do you determine that the 'bruise' caused by someone's comment is any worse than what that person would feel if they embarrassed themselves by tripping on a sidewalk curb in front of other people? Is being embarrassed the same as you'd be embarrassed by tripping on a curb sufficient embarrassment that you should be able to sue over it? If YOU wouldn't be 'bruised' by a certain type of embarrassment does that mean that no one else could feel 'bruised' by that exact same type of embarrassment? Does someone who has a VERY low threshold for embarrassment get to sue for things that someone who doesn't have such a low threshold for embarrassment couldn't sue for?
You figure out whether someone was genuinely psychologically bruised by the action and by its consequences.
If someone is missing for days and footage is found of somebody shooting him in the head, do we eventually presume that this person died? Yes. Why? Because it is reasonable to assume that someone under those circumstances would be dead. It is reasonable to presume that certain actions lead to certain consequences.
The second factor to consider here is whether the impact can be measured through experts, witnesses and so on. How did the victim react after the event?
Take both into consideration and then evaluate whether any compensation is due.
I am intrigued because the laws I know don't make an exception for that. What law are you referring to, just out of curiosity?
There is no law against it here, so there's no law for me to cite. What law do you have that makes it illegal?
Brazilian's penal code. Article 218-C, for example.
"Offer, exchange, make available, transmit, sell or exhibit for sale, distribute, publish or disclose, by any means - including through mass communication or a computer or telematics system -, photography, video or other audiovisual record containing a scene of rape or rape of vulnerable or who condone or induce their practice, or, without the consent of the victim, sex scene, nudity or pornography"
It forbids publishing rape videos on all cases, and sex scenes, nudity and pornography when done without consent.
In Brazil, our constitution grants us a lot of rights and they often clash. We have a right to our image, meaning, for example, that people can't demean us. At the same time, we also have freedom of press. And as you know, the press will often say true things about people that end up tarnishing someone's image.
So when rights clash, we employ multiple techniques to figure out how to proceed. For instance, we ask whether it is possible to find a work-around where both rights remain intact. It just so happens that it is impossible to properly show the news if the news can't tarnish anyone's image.
It's the same here. Here we give considerable weight to the right to free speech. In order for someone's right to free speech to be impeded requires a significant harm from that free speech. The instances where that's so are when you say something that simply isn't true. IF what you are saying is true, there are very few if any instances in which your right to say it would be impeded. Just because some people find what I say to be rude doesn't matter. Just because some people might find what I say to be disgusting doesn't matter. Just because some people might be embarrassed by what I say doesn't matter. Your right to not encounter rude people or disgusting people or people who embarrass you is not more important than another person's right to free speech.
Does it matter if you damage someone's image and honor though?
Do you mean that as long as there is a law that specifically addresses a given situation you are fine with it? Honestly, I don't mind. I doubt the legislators would be bothered though so we have to make do with more generic laws.
I don't know what you mean by this. All I said was that of course a person who commits murder should be arrested, because committing murder is a crime. However, someone yelling at me and scaring me is not a crime, so obviously no one should be arrested in such a case.
Sure. I was asking you if, for example, it became a crime to yell at others you would be fine with people being arrested because of that.
In your example, if the pic was intended and necessary to properly inform people it gets a free pass. But if it was not, you would need to evoke another constitutional right to justify it. And no, freedom of speech by itself doesn't count. Because if it did, it would render the right to image and honor completely void...always.
Just to simplify matter: what you are worried about is a fairly typical matter dealt by our courts here.
Really? So the original example you gave in which I mention that your spouse is cheating on you in front of others and it embarrasses you is against the law? Please share with me what specific law was violated in this case.
Depending on the circumstances, it can be considered defamation in Brazilian's penal code, article 139.
"Defame someone, imputing an offensive fact to their reputation"
Just to make it clear: saying the truth doesn't excuse defamation.
And you didn't answer the question I asked before. If you were to say something that you thought others might find informative and you get sued because your statement embarrassed someone, how would you prove that you were just trying to be informative and weren't just 'doing it for a laugh'?
It is up to the one that accuses the other of doing something wrong to prove it. Plus, in case of reasonable doubt the verdict will be not guilty.
The proof here though is centered around the surrounding circumstances and the way the statement was phrased and uttered. If you are a jornalist saying that someone is suspect of commiting a given crime, you are merely relaying information. If however, you decide to spread around that MR. X has the smallest stick you have ever seen, even if it is true, your intent is clearly to make him lose face.
