The moral damages condemnation of the big media vehicles

an analysis from the judgments of the Brazilian Superior Court of Justice

Abstract

Both freedom of speech and freedom of  press are fundamental rights within a Democratic State of Law and are duly provided for in the Federal Constitution. In view of this, the major communication agencies exercise this right and must observe the limits imposed by the constitutional text itself in order not to affect the fundamental guarantees of the citizen. Thus, when there is an abuse of this right by the press vehicle, there is the possibility that the offended party may sue against such organ for patrimonial or extra-patrimonial damages. Based on the doctrinal and jurisprudential provisions that moral damages have both a pedagogical and punitive function, we intend to analyze, in the judgments of the Superior Tribunal de Justiça (STJ), what are the amounts imposed as a condemnation for vehicles that abuse this right, in addition to observing whether or not such amounts have an impact on the appearance of new lawsuits in the sphere of the STJ, this being the research problem of the present work. The general objective is to analyze, at first, the journalistic function within society and the influences it has suffered over time and with the transformations it has undergone in the capitalist context and the constitutional rights of the press organs and citizens in order to verify the application in cases of possible abuse of rights by the media. Also, more specifically, the analysis of the judgments of the STJ aims to observe the factual application of these theoretical references and what are the possible implications in the scope of the judging body. The approach of the research will be deductive, starting from concepts such as the journalistic function, moral damages and the constitutional rights of the press vehicles, journalists and individuals, up to the statistical and quantitative verification of the judgments of the STJ on the theme. For the research, the terms "emissora" were searched in the electronic site of the STJ, without any time frame, with 261 judgments; "fake news", with 87 judgments; "sensacionalista", with 20 judgments; and "sensacionalismo", with 6 judgments. After this stage, there was a filtering process in order to meet the parameters of the present research, leaving 28 rulings of the major media vehicles that were condensed according to the economic group they belong to and their editorial line. It is noteworthy that there was also no distinction between the type of media, thus radio, television, magazines, newspapers and electronic media were analyzed together. The research pointed out, in view of the judgments accessed from the STJ, that the application of moral damages as a punitive and pedagogical character did not have a significant effect to the point of reducing the occurrence of other cases of libel, defamation or slander, at least in the sphere of the body.