Legal Basis for Brazilian Classification

Timelines: All, India Categories: 1980s, Brazil, Country, Decade, Government, Law Legal Basis for Brazilian Classification
Date: 1988


Age rating for media, or “indicative classification”, is underpinned in Brazil by a set of federal laws established following the end of the military regime which lasted from 1964 to 1985. Key laws include the Federal Constitution of 1988, the Child and Adolescent Statute (no. 8069 of 1990), and the Ministry of Justice ordinance (no. 368 of 2014).

Brazil’s Federal Constitution of 1988, promulgated on 5 October, is the seventh constitution enacted since Brazilian independence in 1822. Article 5 of the Federal Constitution of 1988 guarantees free expression through the clauses “IV. the manifestation of thought is free, but anonymity is forbidden” and “IX. expression of intellectual, artistic, scientific, and communication activity is free, independent of any censorship or license”. The former Public Entertainment Censorship Division and its regional offices was disabled under Ministry of Justice ordinance no. 1065 of 1988. In the Constitution, under Title III: Organization of the State, Chapter 1: Political-Administrative Organization, Article XVI states that “The Union shall have the power to classify, for purposes of viewer discretion, public amusements and radio and television programs”. Under Title VIII: The Social Order, Chapter V: Social Communication, Article 220 guarantees protection from censorship: “Any and all censorship of a political, ideological and artistic nature is forbidden”. Paragraph 3 states:
“It is the province of Federal law to:
I. regulate public entertainment and shows, and it is the responsibility of the Government to advise about their nature, the ages for which they are not recommended and the locales and times unsuitable for their exhibition;
II. establish legal measures that afford individuals and families the opportunity to defend themselves against radio and television programs or schedules that contravene the provisions of art. 221, as well as against commercials for products, practices and services that may be harmful to health and the environment.”
It is important for the indicative classification system that these principles are specified in the Constitution, since this document compels other law and policy to act accordingly. It specifies commitments to indicative classification that in recent Brazilian history have not always corresponded to the interests of media companies and would otherwise be subject to parliamentary processes influenced by their lobbying.

The Constitution also outlines the government’s responsibilities to minors. Chapter VII: Family, Children, Adolescents, Youths, and Elderly, Article 227 states that:
“It is the duty of the family, the society and the Government to assure children, adolescents, and youths, with absolute priority, the rights to life, health, nourishment, education, leisure, professional training, culture, dignity, respect, liberty and family and community harmony, in addition to safeguarding them against all forms of negligence, discrimination, exploitation, violence, cruelty and oppression.”
Paragraph 8 states that “The law shall establish: I. the statute of youth, designed to regulate the rights of youth”.

In 1986, when the Government was drafting the Federal Constitution of 1988, Brazil established a National Committee on the Child and the Constitution, which included multiple NGOs, such as the National Street Children’s Movement, and was supported by UNICEF. In 1990, the Child and Adolescent Statute (Law no. 8,069 of 1990) was passed by both houses of the Brazilian National Congress, with 5000 children meeting in Brasilia and many occupying the Senate. The Statute established Councils for the Rights of Children and Adolescents at federal, state, and local levels of government, charged with protecting the rights of minors. In Title II Chapter II Special Prevention, Section I Information, Culture, Leisure, Sports, Entertainment and Shows, Articles 74, 75, and 76 are relevant to indicative classification, reproduced here in full.
“Art 74. Acting through the proper organ, the public authority will regulate public entertainment and shows and, with respect to their nature, will inform as to the age brackets for which they are not advisable and the locations and schedules in which their presentation is not suitable.
Those responsible for public entertainment and shows should, in a visible and easily accessible place at the entrance of the site of exhibition, present highly visible information as to the nature of the show and the age bracket specified in the certificate of classification.
Art 75. Every child or adolescent shall have access to public entertainment and shows classified as suitable to his age bracket.
Children of less than ten years of age may only enter and remain in localities of presentations or exhibitions when accompanied by their parents or guardian.
Art 76. Radio and television stations may only exhibit educational, artistic, cultural and informative programs in the schedule recommended for the juvenile population.
No show will be presented or announced without notification as to its classification, before its transmission, presentation or exhibition.”
In Title VII Chapter II Administrative Infractions, Articles 253, 254, 255, 256, and 258 outline the penalties, calculated in terms of “reference wages”, for exhibiting theatre plays, films or TV shows without indicative age ratings, for transmitting radio or television shows at times in the schedule that they are not authorised, and for exhibiting and selling theatre shows, films and videos to minors for whom they are not appropriate, as determined by age classifications. This is the basis of broadcasting restrictions according to age and time of day that are the subject of court battles launched by television companies through the 2000s.

Along with the Constitution and the Child and Adolescent Statute the Ministry of Justice ordinance no. 368 of 2014 (MJ 368/2014) governs media classification in Brazil. This ordinance supersedes and combines multiple former ordinances, regulating the provisions of the Child and Adolescent Statute, as well as Law 10,359 of 2001 and Law 12,485 of 2011. It distinguishes between “self-classification” as the “attribution of the indicative classification by the person in charge of the work, to be confirmed by the Ministry of Justice”, and “matrix classification” as “classification assigned by the Ministry of Justice valid for all vehicles and market segments” (Chapter 1, Article 1). The Department of Justice, Classification, Titles and Qualification (DEJUS) is made responsible for indicative classification, including a number of activities:
“I – content analysis of audiovisual works, electronic games, applications and character interpretation games;
II – assignment of classification for indicative purposes;
III – verification of compliance with the indicative classification rules;
IV – warning for non-compliance with the indicative classification rules; and
V – communication to the competent bodies of non-compliance with the indicative classification rules” (Chapter 1, Article 5).
The ordinance emphasises the rating system’s educative function: “The indicative classification is pedagogical and informative in nature capable of guaranteeing the person and the family prior knowledge to choose amusements and public spectacles suitable for the formation of their children, guarded or curated” (Article 7), however responsibility for media consumption also remains with parents: “The prerogative of parents and guardians to authorize access to classified works for any age . . . does not relieve them of the physical, mental or moral integrity of their children” (Article 8).

MJ 368/2014 outlines an already existing system of age-based categories and the corresponding times at which such rated material can be aired on open (free-to-air) television. Chapter 2, Article 10 specifies these limits:
“I child protection range:
a) from six to twenty hours [6am to 8pm]: exhibition of works classified as free or not recommended for children under ten;
II protection of adolescents
a) from the twenty hours: exhibition of works classified as not recommended for children under twelve or with a lower rating;
b) from twenty-one hours: exhibition of works classified as not recommended for children under fourteen or with a lower rating; and
c) from twenty-two hours: exhibition of works classified as not recommended for children under sixteen or with a lower rating; and
III adult range
a) from twenty-three to six o’clock: exhibition of works classified as not recommended for children under eighteen or with a lower rating.”
A Federal Supreme Court decision in 2016 rescinded the right to penalise TV broadcasters for failing to comply with these age and time restrictions. Thus these limits continue to operate as norms but commentators argue they are being increasingly disregarded by broadcasters.

Media types are distinguished by classification practices as follows. Films to be exhibited in cinemas and for the home video market require prior analysis and classification (MJ 368/2014 Article 19), while works for open television are exempted from prior analysis, provided these are self-classified and a detailed synopsis for works of fiction is provided to the Ministry of Justice. Article 25 states that “The self-classification published on the Ministry of Justice’s electronic website is valid until the definitive classification by the Dejus, published in the Official Gazette of the Union within sixty days after the start of the audiovisual work. Electronic games and applications are subject to prior analysis” (Article 37), however a subsequent partnership with the International Age Rating Coalition (IARC) means that DEJUS itself is only responsible for classifying games sold as physical copies. Finally, regarding audiovisual works for exhibitions and festivals, these “may be self-classified and shall present the symbols and other information of the indicative classification according to the Practical Guide of Indicative Classification and shall be exempt from the registration of a self-classification process in Dejus” (Article 38). DEJUS has the power to launch an administrative proceeding to investigate the self-classification of such works, in relation to complaints or its own monitoring. Video-on-demand must be self-classified, using the same age-based categories. – Liam Grealy

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