Lino and Mario Bocchini, creators of the Brazilian parody website Falha de São Paulo, are currently appealing a court order that froze their domain two years ago. In September 2010, Brazilian newspaper Folha de São Paulo filed a lawsuit against the Falha seeking financial compensation for mimicking their layout and copy-editing, and also for “moral damages” to its reputation as a news organization. While the financial indemnities were dropped, Falha’s domain remains frozen for unauthorized use of Folha’s intellectual property.
Folha claims that the latest case is an intellectual property issue, rather than one of freedom of expression, because of the use of domain names and logos resembling its own. We asked Lino what he really thinks of that claim, and spoke to him about what the outcome of this appeal would mean for freedom of expression in Brazil.
To learn more about the Bocchini brothers’ story, check out their most recent website.
Why did you and your brother decide to start Falha de S. Paulo? At the time, did it seem like it would be a financial or legal risk?
When we were beginning, it was the end of 2010, in the heat of the last Brazilian general elections for president. Folha de S. Paulo, our major newspaper in Brazil, has a clear preference for some political parties and can almost act like one. This is common in some countries; usually newspapers and magazines speak in a public way about their political preferences. Another big newspaper in Brazil, O Estado de S. Paulo, does this. One of our biggest weekly magazines, Carta Capital, also does the same. Folha de S.Paulo does not declare their preferences; worse, they say all the time that they are an "impartial and equitable” newspaper. The alternative media has widely unmasked their analysis.
We decided to do the same but with humor, using a parody. In Portuguese, “folha” is a world for “newspaper.” After changing a letter (“falha”), it becomes the Portuguese world for “fail.” We use a lot of photomontage, like putting the head of the newspaper owner (Otavio Frias Filho) on Darth Vader’s body, creating “Otavinho Vader.” It was obviously all a critical joke.
At the time of our original website, we never thought about the risks, because we live in a strong democracy in Brazil, with high levels of free speech rights protections. This unprecedented legal action against us has become a flag for thousands in Brazil.
Before your online paper, were there any other notable parody magazines or newspapers that circulated in Brazil?
Yes, dozens. The first one has existed more than 70 years, and it was called A Manha, a parody of A Manhã. There are a lot of websites with names that look like official ones. One of our most famous chargists [caricature artist], Ziraldo, who just turned 80 years old, had a parody magazine called Bundas (asses) for years. It was a terrible critique of Caras (faces), which was a kind of Brazilian ¡Hola! Magazine. None of them were prosecuted, just my brother and me.
Did you get any cease-and-desist letters or similar requests from Folha before they sued the website? What warnings did Folha give that they were unhappy?
The first document we received was the legal notice that our website had been censored, an 88-page lawsuit against us was in development, and a demand for money. We not received any kind of previous warning.
What were all of Folha’s charges against you in the first lawsuit?
They said we “misused” the name. And they asked for money for "moral damages." According to them, the public could think that our website was the official one. This is a completely nonsense argument. We´re talking about a parody website with the owner of newspaper dressed as Darth Vader...
How did the judge determine a "tie" between your website and Folha? How was Folha able to pressure your domain name registrar into shutting down your original site?
The first judge accepted these arguments about “bad usage” of Folha´s name. The newspaper used these copyright and trademark questions to cover their real intention, which was censorship.
Our website was inspired by Folha. We used some elements such as graphics, language, and a similar name to evoke Folha, of course. But it’s ridiculous that this could be censored. We have a lot of TV shows, magazines, and websites like “Saturday Night Live” in the US, that use real-world elements but are not the real world. Democracy and the right to free speech should allow this use.
Why does the decision mention Carta Capital? What is the orientation of their magazine, and why would the judge assume it is related to your website?
Carta Capital magazine was not mentioned by Folha or by us in any moment of the process. That was purely the judge’s decision. We had a link in our censored website to Carta Capital, among others. The judge said that this “promoted” the magazine among Folha´s readers, so our internet address was “contaminated” forever. He upheld the censorship for this reason.
Was it difficult to decide to appeal the last decision after having been through so much litigation?
No. We will not sit back. We´ll go until the end, especially because this is the first process in Brazil with these legal characteristics. We decided to go until the end and appeal as much as is necessary, even if it takes decades. All bloggers are supporting us. Our victory would be collective. And a Folha victory would open a terrible precedent against the freedom of speech in Brazil.
What are you hoping to get out of this appeal?
I think we all are going to win because day by day, week by week, Folha’s aggression is becoming clearer. The newspaper doesn’t even speak about the case; nobody from Folha has ever made a single speech defending this position. It´s obviously a shame.
Have you had support from other Brazilian bloggers or journalists? Would you describe bloggers and journalists in Brazil as a close, connected community?
Yes, hundreds of Brazilian progressive bloggers have supported us from the beginning, and this was really important for continuing the fight. On the other hand, Brazilian media is too corporate. Despite the fact that dozens of journalists from the conventional media came to support my brother and me, no regular newspaper or magazine has ever noticed the case. In the beginning there was only Folha. Later, Julian Assange and Reporters Without Borders spoke about the case.