Angels and Demons – Good Name and Freedom of Expression

As a citizen, I have always considered myself a libertarian. I have always believed that individuals are capable of achieving whatever they set their minds to, as long as they put their minds to it – that their possibilities should not be limited by third parties – and that this is also why values ​​such as individual self-determination, in all its forms, should be protected by the State. This can obviously only be achieved through a high degree of freedom of thought, expression, political, economic, social, personal initiative, or any other freedom we can think of. What a libertarian also knows is that this principle entails risks.

A libertarian without conscience will quickly slip into behaviors that are contrary to the common good, individualistic, in the sense of private interest and that is why, even though I am a libertarian, I am also a defender of clear rules, of their respect, and of punishment for non-compliance, since only within the rules and parameters can we have collective freedom.

As a libertarian economist, I am almost a repetition of concepts. It is difficult for me to conceive of a functional model of economy, and especially society, in which I could live without these freedoms, but if there is one thing that economics taught me early on, it is that everything must be assessed in context, and with the counterbalance either of the alternative, or the other side of the mirror – the cost. Economic discussions are therefore often assessments of the value of scales and the hypotheses that shape them, and it is very rare to obtain perfect consensus – and very rare to have unanimity.

The existence of unanimities is therefore counterintuitive to me, and when they arise it is normal for them to worry me and lead me to look behind the curtain for the element that might have been forgotten that could have led to the conclusion of the analysis being so monolithic. I am usually called the “devil’s advocate”, an expression that fully fits this text.

The collective assessment of the action brought by a music band, the Angels, to Joana Marques, was one of those moments. When I started asking questions, because “I am not a lawyer”, I became even more confused, not about the collective certainty that it would lead to nothing (from what I know, questions about good name, honor and related issues are given very little importance in national courts), but about the certainty that the complaint has no basis whatsoever.

It should always be borne in mind that the public assessment of the matter, from what I understand, was made mainly by journalists and comedians. Considering some of them in the best possible light, it is limiting to ask people who make a living expressing their opinions about what they think of freedom of speech and expression, because, as Maslow is said to have said, “to a hammer, any screw is a nail”. Moreover, these journalistic opinions or humorous pieces will have more resonance if they are more extravagant and shocking. It would be a first for a journalist to state that limiting freedom of speech would be the best solution to any problem. The only more disinterested, analytical and detached opinion I heard was that of the former minister Professor Rui Pereira, which left me even more confused because he, an experienced dean, did not seem to have the current collective certainties, and I am a boy who always tries to listen to his elders.

Therefore, and for my own and collective clarification, here is my contribution, more along the lines of questions and doubts, than of certainties and explanations – and let's see if anything remains from the Introduction to Law classes.

As a basis for analysis, we must recall the legal principle that there are no absolute rights. All rights can be relativized given specific circumstances in which they conflict with others, perhaps even seemingly considered to be lesser. A good example of this need for framing is the right to life, considered to be the highest and most important right, but which can be violated in specific situations such as self-defense or abortion, or the right to physical integrity (see how football fan clubs are treated). All rights are subject to discussion, and it was also to resolve conflicts of rights that the courts were invented.

In this particular case, and contrary to what was presented by the community, it does not seem that the noble right to freedom of expression is even being called into question – this is not a criminal case – the allegation that the exercise of a right was illegal is not raised, only that it was harmful and had harmful consequences. This nuance , forgotten by most commentators, seems crucial to me, especially when people are already talking about an “attack on freedom of expression”. It won’t be long before the Angels try to buy Cofina and undermine the rule of law…

The Anjos’ lawyers quickly explained to them that a criminal complaint would not be upheld, which is why they opted to file a complaint in a civil proceeding. Here, as plaintiffs, they will have to prove with “preponderant probability”, that is, that it is more likely that their complaint is well-founded than not – a concept that is much less demanding than in a criminal proceeding where the evidence must be beyond a reasonable doubt. They will “only” have to convince the judge that they were probably indeed harmed by the video.

For the complaint to be successful, it will be necessary that 1) damage has occurred, 2) due to an action or omission, 3) related, 4) in an act carried out with intent or fault.

The existence of damage seems indisputable. Any artist who makes a living from art and who sees his or her art being exposed in a humorous way in a ridiculous situation is harmed. Here, in addition to the good name, the ability to earn a living must be affected, to a greater or lesser extent, especially because the comedian has a wide media impact. The justification for the measure of damage was the reason for the presence of some witnesses.

The occurrence of an action and an omission also seem equally indisputable. There was an action for the humorous video that was created, and an omission for not removing it when the plaintiffs requested it. Therefore, if there was damage, the defendant was responsible for its initiation, and for its perpetuation, by not removing the video in question.

The relationship between these two, if any, will be easy to prove. The plaintiffs have taken to court some examples of contracts that they have lost because of the video in question and/or the controversy it generated. Some people try to make a distinction here between the damages caused by the video and the damages caused by the lawsuit filed by the singers. Obviously, the court will not be able to distinguish between the two, since one arises from the other – and the principle that the losses resulting from going to court should be borne by the plaintiff is a dangerous principle, since it pushes future injured parties out of the justice system.

Finally, intent or fault. I believe that not even the singers should claim that there must have been a willful intent to harm them with the video. On the other hand, the fault (fault = negligence, imprudence or lack of skill), due to the defendant's negligent attitude, is evident. According to what was said in court (if confirmed, of course), she was warned by the singers that the video was disturbing them. That it was harmful. She was even threatened with legal action if she did not remove the video. It will be impossible to claim that there was no perception that it was having an impact, and to defend the behavior outside a context of, at the very least, negligence.

4 in 4, potentially.

So, what is it about this case that is so clear that it deserves such a clearly unanimous opinion, without reservations or “ifs”?

The evidence in court will certainly be varied, but it is already understood that oral testimonies will be the most relevant. They will have to be assessed for their veracity and probity, and some may be discarded by the judge, but, given what is known, she will not have the simple task that everyone seems to identify.

The fact that this case could generate some case law makes it even more interesting. Does humor have different limits than the freedom of expression enjoyed by the rest of us? Could the fact that the defendant continued to mention the subject be considered harassment or some form of bullying (cyberbullying, if you prefer)? Could a video sent to a social network where it will remain forever be more serious than a joke on a live show, without preparation? Does a comedian have an increased responsibility for what he says since, unlike what I might say in public, he has experience of it and a better understanding of the impact of his actions? Should a social network account with hundreds of thousands of followers (who will then forward the post across the network) be subject to increased care when publishing considerations about third parties? Where is the boundary between the rights of some and others?

We live in a strange time when we place “survivors” of trauma, accidents and illnesses on a pedestal and value them when they talk about their demons and torments, and even more so when they have the courage to go to court to point the finger and submit themselves to reliving traumatic experiences so that abusers of all kinds can be brought to justice, but we laugh when two grown men go to court to admit embarrassing details of their most personal lives, or to point out what they did to overcome their trauma. Would the assessment of damages be assessed differently if the complainants were women or children? Or, even, does the conclusion that when we feel wronged we should not fight for our rights apply to other situations? Should I listen and keep quiet if a work colleague prints and posts photos of me making a sad face at the Christmas party?

We should also not confuse this case with that of Brazilian Leo Lins, who was convicted for making jokes about blondes and people from the Northeast. The Brazilian was convicted of microaggressions, a modern concept that allows people to fit into a class and complain about having been attacked by a joke that was not directed at them. The case in question is the diametrically opposite situation.

If on the one hand the defendant's conviction will lead to a feeling of staleness and the silencing of simply jocular opinions , taking us centuries into the past to discuss the limits of laughter and humor, the acquittal will lead to a scenario of infinite impunity for me to make a post about my neighbor who looks like he has children locked in the basement (he doesn't even have a basement).

I tried to raise these questions without ever referring to the two original elements of the case: the anthem sung and the humorous reaction, because what is fascinating about the case for me is the collective myopia about how to analyze a problem in a scientific way and not so much the out-of-tune nature of some or the hilarious capacity of others. I also tried to be neutral about my personal artistic tastes, which easily poison the analysis of many since some are pimbas and the defendant is not, or vice versa because Joana Marques is a confessed fan of Pinto da Costa, elements that will never help to evaluate the issue in a balanced way.

As an attentive and curious spectator of the case, but at the same time without any particular interest in those involved (I don't know them, I've never been in their presence, I don't know any family members or friends - as far as I know), I will be attentive to the unfolding of the process, its results and decisions (which could take a long time), without being able to help but regret that national and judicial resources have to be spent on a conflict case that should have been settled away from the courts and for the benefit of all.