Manifestação, honra e ódio na internet: a proteção da liberdade de expressão por meio da capacidade comunicativa e da autorregulação

Abstract

During the internet s immense growth in the last two decades, the literature on freedom of expression, its limits and restrictions has made important advancements on several fronts while maintaining two weaknesses, especially in Brazil. First, there is a dearth of empirical research to test whether the Judiciary is in fact applying balancing and the principle of proportionality, the consolidated theoretical models for solving conflicts between free speech, the right to honor and image. Second, the vast majority of studies examines the evolution of elements such as content, impact, speakers and context of expression presuming that courts remain a capable and more efficient arena for solving these cases. I adopt these deficits in scholarship as main research questions and employ predominantly quantitative, but also qualitative methods, in addition to inductive reasoning, in order to answer them. The results show that theory is largely ignored by trial-level judges at the Rio de Janeiro state court, while superior courts suffer with poor procedural conditions of quality to rule in general, and specifically in the field speech. The rulings that represent 70% of all citations to precedent in Brazilian Supreme Court decisions about speech ignore the opportunities to offer useful holdings desperately needed by trial courts. Parallel to this, the decentralized, even if not yet perfectly democratic, communication environment on the internet has afforded opportunities to balance the power to reach an audience in an unprecedented way for the traditional mass-media society. This increasingly egalitarian inclusion of a large share of the population in public debate has resulted in the mobilization of groups against hate speech on and offline. Faced with these results, I make two arguments. First, when evaluating compensation requests for moral damages due to an offense to honor and image or in the context of private law litigation of hate speech, the judge should proceed to review the content of speech only when a first test of the speaker and the offended party s communicative capacity reveals an unbalance favoring the speaker. Second, the moderation of free speech online should be performed predominantly in the context of a new kind of autoregulation. It is characterized by the cooperative relationship between online content platforms and users empowered with a desire and capacity of self-government, leading the task of determining what types of speech are abusive, identifying instances thereof and enforcing their decisions.