## Facts

- A Brazilian actress gave an interview to a magazine published by a publishing company and expressly withheld authorization to use her photographs in connection with the interview.
- The publisher obtained the actress’s photographs from a newspaper and used them commercially on magazine covers, internal advertising pages, promotional posters, another magazine cover, and related advertising films.
- The actress sued seeking both material (pecuniary) damages and moral (non-pecuniary) damages for unauthorized commercial exploitation of her image.
- Lower courts recognized liability for material damages, but a higher court denied moral damages on the theory that mere publication of photographs did not, by itself, injure reputation.
- The actress sought constitutional review, arguing that denying moral damages conflicted with constitutional protection of personality rights, including the right to image.

## Issues

1. Whether unauthorized commercial publication of a person’s image, without additional proof of reputational harm, can support moral damages under constitutional protection of image and related personality rights.
2. Whether moral damages may be awarded cumulatively with material damages for the same unauthorized commercial use of image.

## Decision

- The court unanimously granted the appeal and reversed the denial of moral damages.
- The court held that unauthorized commercial exploitation of an individual’s image can itself constitute a compensable moral injury, even without separate proof of reputational damage.
- The court held that moral damages are cumulative with material damages; the same wrongful act may generate both.
- The publisher was ordered to pay an amount calculated as 21.5 times the minimum wage plus 10% in attorney’s fees, in addition to the material-damages liability already recognized.

## Legal Principles

- Constitutional protection of intimacy, private life, honor, and image includes a right to compensation for either material or moral harm resulting from their violation.
- Unauthorized commercial use of a person’s image is an infringement of a protected personality right and may justify moral damages even absent defamatory content.
- Moral damages and material damages address distinct protected interests and may be awarded together for the same conduct.

## Conclusion

The court recognized that unconsented commercial use of a person’s image is a constitutional personality-rights violation that can warrant moral damages without separate proof of reputational injury, and it confirmed that moral and material damages may be recovered cumulatively.


Cássia Kis v. Ediouro S/A, RE 215.984-1 (Braz. 2002)