Slander (calúnia), as defined in Brazilian Criminal Law, consists of the false imputation of a fact defined as a crime to another person. Included among crimes against objective and subjective honor, its primary purpose is to safeguard the individual's moral integrity before society and the State, protecting the veracity of criminal accusations.
Concept and Foundation
Slander is a formal and commissive offense, provided for in Article 138 of the Brazilian Penal Code (CP). The core of the offense consists of the verb "to slander," which translates to falsely attributing to someone the authorship or practice of a fact defined as a crime. The structure of the offense requires, cumulatively: a) the imputation of a specific fact; b) that this fact be classified as a crime; c) the agent's knowledge of the falsity of the imputation (specific subjective element, intent, embodied in the animus caluniandi).
Unlike defamation (Art. 139, CP) and insult (Art. 140, CP), slander requires that the imputation refers to a fact that is strictly a criminal offense. Imputations of dishonorable facts that do not constitute a crime, or generic imputations, do not meet the requirements of this legal provision.
Historical Origin and Evolution
The protection of honor dates back to Roman Law, under the aegis of the actio injuriarum, although the technical distinction between the types of crimes against honor was consolidated in modern times. In the Brazilian legal system, the 1940 Penal Code systematized slander as a protection of objective honor — the individual's social reputation. Doctrinal evolution, influenced by penal legalism, imposes the need for a concrete fact, prohibiting punishment for generic or vague slander, under penalty of violating the principle of taxativity.
Legal Provision and Structural Elements
Article 138 of the Penal Code is the central provision: "To slander someone, falsely imputing to them a fact defined as a crime: Penalty - detention, from six months to two years, and a fine."
Paragraph 1 extends punishability to anyone who, knowing the imputation is false, propagates or disseminates it. Paragraph 2 provides for the punishment of an agent who commits the crime against the deceased. The criminal action is, as a rule, private (Art. 145, CP), except for specific cases of conditional or unconditional public action, when the crime is committed against a public official due to their duties.
Jurisprudential Understanding and Contemporary Relevance
The Supreme Federal Court (STF) and the Superior Court of Justice (STJ) reiterate that slander requires the unequivocal demonstration of specific intent. In current jurisprudence, there is rigorous control over parliamentary immunity (Art. 53, CF/88), which, although broad, is not absolute, not reaching manifestations that exceed the connection with the exercise of the mandate or that constitute intentional excess.
A point of contemporary debate lies in slander practiced on social networks. The dissemination of false information (fake news) that imputes crimes to third parties in digital environments has been the subject of analysis from the perspective of continuous offense and the penalty increase provided for in Art. 141, § 2, of the CP, which increases the penalty when the crime is committed or disseminated on any type of social network on the world wide web.
Related Principles and Divergences
Slander directly confronts the constitutional principle of freedom of expression (Art. 5, IV, IX, CF/88). The doctrinal clash lies in the balancing between free expression of thought and the protection of honor. The majority doctrine, in line with the superior courts, establishes that freedom of expression does not constitute a safe conduct for the practice of criminal offenses, with honor prevailing when the imputation is devoid of factual basis and carried out with the intent to harm the legal interest of others.
Practical Impacts on the Legal System
The application of slander in the current scenario requires caution regarding the "exception of truth" (Art. 138, § 3, CP), a procedural institute that allows the defendant to prove the veracity of the imputation to exclude the typicality of the fact. Failure to prove veracity, in many cases, consolidates the conviction, reinforcing the protective nature of the penal norm against malicious disinformation.
Legal and Jurisprudential References
- Brazil. Decree-Law No. 2.848, of December 7, 1940. Penal Code. Articles 138 to 145.
- Brazil. Constitution of the Federative Republic of Brazil of 1988. Article 5, items V and X.
- STF. Inq 4.781/DF (Fake News Inquiry) - Discussion on the limits of freedom of expression versus crimes against honor.
- STJ. RHC 145.892/SP - Jurisprudence on the need for specific intent in the configuration of slander.
- Law No. 14.197/2021 (Amendments to the Penal Code regarding crimes against the Democratic State of Law and repercussions on honor).
