Supreme Court on TV Scheduling

Timelines: Brazil Categories: 2010s, Brazil, Country, Decade, Government, Law Supreme Court on TV Scheduling
Date: 2016
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Brazil

The requirement to screen content according to a legislatively prescribed schedule organised by indicative classification, or age-ratings, was significantly changed in Brazil in August 2016. The legal drama started in 2001 when the Federal Council of the Brazilian Bar Association (OAB) brought a Direct Action of Unconstitutionality (ADI 2398) against the Ministry of Justice ordinance no. 796 of 2000 (which preceded MJ ordinances 1220/2007 and 368/2014 in regulating television). On 2 February 2007, the ADI was suspended in preparation of a meeting between Minister Ellen Gracie, the President of the Federal Supreme and representatives of civil society. On 7 February 2007, representatives for ANDI–News Agency for Children’s Rights, the Federal Public Prosecutor’s Office (MPF), the National Council for the Rights of Children and Adolescents (Conanda) and the University of Brasilia (UnB) argued for the importance of the indicative classification system, and presented Minister Gracie with a paper outlining how similar systems work in comparable democratic countries.

However, four years later, on 30 November 2011, a hearing began for the Direct Action of Unconstitutionality [ADI 2404], moved by the Brazilian Labor Party (PTB) at the request of broadcasters. The ADI sought to find the unconstitutionality of article 254 of Brazil’s Statute of the Child and Adolescent, under which broadcasters can be penalised for failing to comply with the schedule restrictions associated with age-ratings (also specified in article 17 of MJ 1220/2007). During the November 2011 hearing, four votes were cast for the unconstitutionality of the article, by Rapporteur Dias Toffoli and Justices Luiz Fux, Carmen Lúcia, and Ayres Britto. In his vote, Toffoli wrote that the state “can only indicate, inform, recommend, not prohibit, bind or censure” (Conjur 2016). At this point Justice Joaquim Barbosa called for a stay of proceedings, “interrupting the proceedings under a local procedural rule permitting consideration of a case to be suspended so as to allow for more time to consider the issues involved” (Mendel 2012, 1).

A public hearing on indicative classification of open TV was held in December 2011 at which the Deputy Director of DEJUS, Davi Pires, argued that removing penalties would render the system ineffective: “The fines are collected by means of judicial procedure. For fear of these punishments, I believe that the companies have tried very hard to improve the level of open TV programming” (Haje & Macedo 2011). In contrast, the representative for the Brazilian Association of Broadcasters (ABERT), Heloísa Almeida, claimed the responsibility for educating children remained with parents and that indicative classification “should be indicative only, not binding” (Haje & Macedo 2011). In December 2014 a public letter was co-signed by approximately 80 organisations expressing their protest of ADI 2404 and support for the indicative classification system including the scheduling requirements and associated penalties, as well as calling for a public hearing on the subject (Intervozes 2014). The case resumed on 5 November 2015, at which point Justice Edson Fachin voted in favour of article 254’s constitutionality and Justice Teori Zavascki again suspended the trial by requesting a hearing. In March 2016 a panel titled “Indicative Classification: The STF Action and the Risks for the Protection of Children and Adolescents” was held in Brasilia, featuring the National Human Rights Council (CNDH), the National Council of Rights of the Children and Adolescents (Conanda) and various civil society organisations. A public campaign was also launched in support of the indicative classification system.

On 31 August 2016 the Brazilian Senate impeached President Dilma Rousseff through a 61-20 vote. On the same day, and with limited media coverage due to the impeachment, the STF ruled that the time restrictions on television broadcasts were illegal, conceived as a form of censorship prior to the broadcast of programming. Broadcasters continue to be required to include indicative classification ratings in programming, but are no longer restricted by the hours at which they can broadcast. The trial had resumed with the vote of Minister Teori Zavascki against the obligatory nature of article 254, who was supported by Justices Marco Aurélio and Celso de Mello. Chairperson Ricardo Lewandowski and Justices Rosa Weber and Edson Fachin (who voted on 6 November 2015) decided in favour of the constitutionality of article 254. The concluding tally of votes was 7-3, with Justice Gilmar Mendes excusing himself from the trial having acted as Advocate General of the Union from 2000-2002 during which time ADI 2398 was filed. For Renato Godoy of the Alana Institute, “The STF decision did not take into account the absolute priority of the rights of the child. The trial weakens the child’s right to inviolability, especially in broadcasting” (CAIOC 2016). The members of the Civil Society Follow-up Committee for Indicative Classification (CASC-Classind) immediately called for a meeting with DEJUS to discuss measures to strengthen adherence to the indicative classification system. However, the situation remains that broadcasters are no longer restricted by broadcasting times, resulting in recent criticisms regarding the exhibition of “mature” content during the afternoon and early evening. – Liam Grealy

Further reading:
– CAIOC. (2016). STF drops indicative rating on TV. classificacaoindicativa.org.br. (Portuguese). https://goo.gl/6uZdVr
– Conjur. (2016). Indicative classification is pedagogic not censorship, defines Supreme Court. Consultor Juridico. (Portuguese). https://goo.gl/qWyGGj
– Haje, L. & Macedo, A.R. (2011). STF may make ineffective classification on TV, alert Ministry. Camara dos deputados. (Portuguese). https://goo.gl/sEdkti
– Intervozes. (2014). Organisations launch public notice in defense of indicative classification with hourly link for open TV. (Portuguese). https://goo.gl/dUfcVR
– Mendel, T. (2012). Freedom of expression and the regulation of television to protect children: Comparative study of Brazil and other countries. Centre for Law and Democracy: Halifax, N.S.

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