Unauthorised Biographies: An Analysis Under the Perspective of Robert Alexy's External Theory

Abstract

The present paperwork aimed to analyse whether or not the publication of a biography should require the prior authorisation from the subject  or their family. As there is, in this case, a collision between personality rights and freedom of speech, the proportionality test was used to solve such conflict. The first step was to define biography as a non-ficctional genre. The paperwork then aimed to define the theory of the principles, the external theory of the restriction of fundamental rights and the proportionality test developed by jurist Robert Alexy, which are largely used in Brazil by authors like Virgílio Afonso da Silva, Ingo Wolfgang Sarlet and Daniel Sarmento. It was observed that when fundamental rights collide, the proportionality must be verified and as a result there is a conditional precedence relation between the rights. In such case, the ceding right will be restricted by the preciding one. The external theory is a recognised manner of verifying whether the restriction of a fundamental right is legit or if it is a violation. The need for prior authorisation, based on the personality protection, restricts freedom of speech, on the other hand, its exemption is based on the right to freedom of speech. By applying the aforementioned method, a particular rule was developed and the conditions for it to be applicable: freedom of speech prevails over personality rights in given conditions (public figure, over suitable means, no expectation for privacy in the publication, diligence in the verification of truth or social and journalistic interest over the information)