Cláusulas morais nos espaços de autonomia: a disposição contratual sobre comportamentos privados

Abstract

Morals clauses are those that establish behaviors that a certain celebrity (usually an artist, soccer player or digital influencer) must refrain from practicing due to the conclusion of an advertising contract. Usually, the moral clauses refer to contracts whose object is the license to use the image, understood in its existential and patrimonial content. Originating within the scope of the North American film industry in the 20th century, moral clauses generally refer to the practice of crimes, abusive use of alcohol or drugs, dishonesty or any other acts that may demoralize, ridicule or lead the celebrity itself to contempt before the society. In this case, the use of the clause may authorize the contractor to terminate or suspend the contract with the maintenance of services for a later date or, still, impose a penalty for immoral behavior, but with the continuity of the contract. The present study, which is guided by the methodology of civil-constitutional law, is dedicated to the investigation of legality and the possibility of applying the moral clause in Brazilian law, considering that its content intends to limit autonomy with respect to behaviors eminently private, that is, that are not necessarily related to the contract. Therefore, considering that advertising contracts will use the image of a certain celebrity to carry out advertisements, revealing, in this case, a double legal situation, the moral clauses unravel not only the boundaries of the spaces of autonomy, but also the instances of value control found in the Civil Code, which will allow to identify its admissibility. This is because, often, private behavior reflects an act of existential autonomy lawful and not abusive, but dysfunctional to civil-constitutional axiology, reason why it seems likely to be limited to the discretion of the judge of merit of tutelage. In addition, the collaborationist perspective extracted from the general clauses of objective good faith and good customs seems to be complementary to shelter the moral clauses and allow them to have regular effects on contracts. In times of constant technological development and the growing use of virtual social networks for the dissemination of brands, products or services - carried out, mainly, by the so-called digital influencers in their profiles -, while (self) exposure grows, also increases the constant observation about their conduct, online and offline. This permanent observation and judgment of the behavior of others gave rise to the “cancel culture”, which, due to some bad behavior, can tarnish the reputation of the spokespersons of the brands and, consequently, in the public image of their contractor. Therefore, the stipulation of moral clauses in these contracts may represent a contractual remedy to avoid bad behavior on the part of the contracted celebrities, to justify the undoing of the deal (or the adoption of other measures provided for in the clause), or, still, to mitigate the damage caused as a result of misconduct.