Unauthorised Biographies in Brazil

Following the promulgation of the Brazilian Constitution in 1988, fundamental rights gained a new status and became rules of immediate effectiveness. The problem is that often in a specific case, two or more fundamental rights can collide and in order to resolve this conflict it is necessary to weigh up the rights. The external theory, through the proportionality test, advocated by German jurist Robert Alexy, is a recognised way of arriving at a solution when there is a collision of fundamental rights. A major clash of fundamental rights that caused controversy in Brazil in the second half of the 2000s is the question of whether or not prior authorisation is required from the biographee or family members to publish a biography. The clash between personality rights and the right to freedom of expression caused and still causes disagreements in Brazil, both in the artistic and legal worlds. This paper introduces the subject of biographies and fundamental rights and presents a possible solution to the dilemma of whether or not prior authorisation is necessary for the publication of biographies by applying Robert Alexy's proportionality test.