FREEDOM OF EXPRESSION: A COROLLARY OF THE DEMOCRATIC RULE OF LAW

Abstract

Human beings are, by essence, social beings, whose survival and development are intrinsically linked to their interpersonal relationships. These relationships are built between individuals who, when united, form a society. However, life in society, in addition to fostering cooperation and interaction, inevitably generates divergences, which often result in conflicts. In view of this, it is essential to create rules of conduct capable of ensuring peaceful coexistence, promoting order and guaranteeing collective well-being. These elements are essential for maintaining social harmony to promote order and guarantee collective well-being.

With technological advances and the development of means of communication, especially throughout the 20th century, interpersonal relationships have undergone profound transformations, reflecting the new dynamics imposed by modernity and the growing connectivity between people. Society has become more complex, which has generated the need to improve the legal standards that establish the rights and duties between individuals. The rules of social coexistence have also become more sophisticated, since, with population growth, society has become increasingly heterogeneous over time. In this context, the needs and conflicts between different social groups have intensified, requiring more balanced and comprehensive solutions to ensure harmony and collective well-being (ROSA, 2004).

In democratic states, the Constitution was established to guide society, listing rights and obligations that apply to all those under its aegis. In order to protect citizens from possible abuses by those in power, the Brazilian Constitution lists some rights as fundamental, elevating them to the status of unchangeable clauses. One of these fundamental rights is freedom of expression, which should be a banner raised by all political and ideological spectrums in defense of democracy. Freedom of expression encompasses other fundamental rights: the right to information, religious freedom, artistic freedom and freedom of opinion. Therefore, the expression of thought is nothing more than the exercise of intellectual activity in all its forms, exposed to the public (TAVARES, 2023).

The concept of freedom of expression, exhaustively studied by Brazilian doctrine regarding theoretical-conceptual understandings, has been gaining prominence and being the target of great controversies today. When analyzing the relationship between freedom and democracy, it is clear that both concepts are intrinsically linked, as there is no democracy without freedom of expression of thought, and vice versa. Political pluralism, the foundation of the Federative Republic of Brazil, constitutes an example regarding the freedom to express thought, as it encompasses the existence of diverse ideological thoughts. These ideological antagonisms are possible in a democratic regime. Furthermore, when it comes to freedom rights, the association with democratic thought immediately arises. The concept of democracy, widely studied in the legal universe, is closely linked to freedom rights, with regard to guaranteeing citizens' participation in the country's political decisions (MORAIS, 2007).

In this sense, to understand this relationship between freedom and democracy, it is enough to analyze Article 1 of the Federal Constitution of 1988, which establishes that, for there to be democracy, the State must be based on sovereignty, citizenship, the principles of human dignity, the social values ​​of work, free initiative and political pluralism. The purpose of the State is to satisfy the needs of the people, since power emanates from it. This demonstrates that democratic thought is constituted by the trinomial equality, freedom and the rule of law. The State serves the citizen, and, although it is administratively structured with prerogatives that protect those who hold state power and the supremacy of the public interest, its main objective is social well-being and respect for individual freedoms (DI PIETRO, 2016). Understanding these basic concepts, it cannot be forgotten that, historically, from the Constitution of the Brazilian Empire of 1824 until the advent of the Republic, with the promulgation of the Constitution of 1891, which inaugurated the Liberal State anchored in the freedoms of the citizen, (DI PIETRO, 2016), and extending to our Magna Carta of 1988, the rights to freedom went through many battles until they were enshrined in the Brazilian Constitution. These rights ensure intellectual, artistic, scientific, press and communication freedom, in addition to the freedom of expression of thought and opinion, without the State being able to exercise censorship over them, as advocated by article 5 of the Magna Carta of 1988 (LENZA, 2014).

It is therefore in this sense that this dissertation emerges as the result of debates that have been raised daily in society, gravitating around freedom of expression and democracy. Since this is a subject of great repercussion nowadays, it would be interesting to address it in a broader way. However, given the breadth of the various themes that involve it, it is necessary to delimit it in order to better direct the present research. Thus, the object of this study is intrinsically linked to the theme that is now presented: Freedom of Expression: Corollary of the Democratic State of Law.

The object of this study is directed to an analysis of the fundamental right to freedom of expression and its constitutional protection, essential for the existence of the Democratic State of Law. This right emerged as a defense mechanism against authoritarian and dictatorial regimes, supported by the mantle of the Universal Declaration of Human Rights (1948) (SUPIOT, 2014).

The Federal Constitution of 1988 imposed on the State a list of freedom rights, which constitute fundamental rights. Among them, freedom of expression stands out, since this right promotes the exercise of democracy, favoring social progress. Therefore, freedom of expression, enshrined in the Constitution in Article 5, items IV, IX and XIV, as well as in Article 220 and its paragraph 1, deals with the role of expression, thought and information. Freedom of information includes both access to information and the freedom to inform, anchored in freedom of the press. Article 220 is a corollary of Article 5, item IX, both of our Constitution (MORAIS, 2007).

Although Western countries, like Brazil, offer legal protection to freedom rights, it is of great importance, for the maintenance of a healthy democratic regime, to have legal mechanisms that prevent the proliferation of false news and expressions that encourage violence, especially on social media, considering the capacity of these platforms to reproduce and disseminate content to different parts of the world. This is because, with regard to freedom rights, the need for social adaptation cannot be ignored. Social relations, in contemporary times, are inseparable from the cybernetic environment, and the free expression of thoughts on diverse topics also manifests itself on social networks, bringing discussions of social relevance to this virtual scenario. This context enables the dissemination of news, whether true or false, at great speed, which can have a positive or negative impact on society, or even destabilize structures already consolidated in the political and social spheres (FREDES, 2022).

With the emergence of social networks that use the world wide web platform, news travels greater distances and is replicated exponentially. Among them are fake news, commonly called “Fake News”. This issue has been considered, nowadays, a social phenomenon of great complexity, which raises questions about the harm to the exercise of democracy, as well as the misuse of the right to freedom of expression. However, even before the advent of social networks, fake or biased news was always spread by conventional media, especially in the political arena, and there was rarely a right of reply or contradiction. In this sense, the STF has issued several decisions preventing the dissemination of content considered false. However, the repercussions of this concern a possible implementation of censorship by the Judiciary.

In response to the spread of so-called “fake news”, Bill No. 2630/20 was presented, known as the Fake News Law or “Censorship” Law. The law’s advocates justified its creation based on the need for effective control by digital platforms, through mechanisms that prevent the dissemination of false content, with this control being regulated by the State. The proposed Bill No. 2630/20, also called the Fake News Law, would be a way for the State to combat this “new phenomenon” propagated on social media. However, according to critics of the aforementioned law, there is a huge risk that censorship disguised as protection will be implemented.

This dissertation addresses the fundamental right to freedom of expression, its constitutional protection in the Democratic State of Law, and the implications related to the prohibition of censorship as a form of state control. The choice of the topic of this dissertation is justified by the relevance of freedom of expression for the maintenance of the Democratic State. It is essential to analyze the positive and negative aspects of the exercise of freedom of expression, as well as the challenges arising from the so-called “new media”.

In this sense, this study, entitled “Freedom of Expression: A Corollary of the Democratic State of Law”, pays special attention to the right to freedom of expression, a fundamental right provided for in Article 5, Section IV, of the 1988 Federal Constitution, which states: “The expression of thought is free, and anonymity is prohibited.”

Although it is a fundamental right included in the constitutional order, freedom of expression, like all constitutional rights, is not absolute, since the Constitution itself prohibits anonymity (ROSA, 2004).

The right to freedom, a fundamental right of the first dimension, is included in the constitutional provision as a basic and intrinsic right of Democratic States. It was born as a defense apparatus against authoritarian and dictatorial regimes, which, in their genesis, exercise censorship against political adversaries or any citizens who oppose the established power. There is no democracy without the right of citizens to speak their minds on any topic — religious, political, ideological — and, most importantly, to raise questions and opinions about political classes or public officials. In this context, there is a constitutional provision that prohibits censorship, as provided for in articles 5, section IV, and 220 of the 1988 Federal Constitution (LENZA 2014).

Logically, the Constitution itself, in article 5, section V, imposes on individuals responsibility for excesses committed that may harm the honor and image of third parties. In infra-constitutional laws, especially in the civil and criminal areas, there is a legal provision for compensation for damages caused by the improper use of freedom of expression.

This dissertation divides opinions. Those against the creation of specific laws for the topic claim that the major obstacle lies in defining who will have the authority to decide what is false or true. If the role of controlling social media and determining parameters of what is true or false were assigned to the State, there would be a risk of a return to censorship, which caused so much harm to Brazil during the military dictatorship.

To understand the complex relationship between the right to freedom of expression and the right to personality, both constitutionally protected in our democratic regime, we will explore whether the State's attempt to regulate and limit the expression of thought could be interpreted as a form of re-enacting censorship. The central question is: should the expression of thought be exercised broadly and unrestrictedly? By attempting to regulate it, would the State be compromising this fundamental right?

The justification for this research is based on the need to understand how the regulation of freedom of expression, through legislation and bills, such as Law No. 2630/20 (Fake News Law), can impact democracy and individual rights. Given the proliferation of fake news and the growing concern about disinformation, it is crucial to assess whether regulatory measures and judicial decisions have been proportionate or whether, on the contrary, they are excessively limiting freedom of expression. To answer this question, the study will examine the following hypotheses:

Hypothesis 1: State control over the dissemination of fake news violates the right to freedom of expression by establishing prior censorship;
Hypothesis 2: State actions aimed at combating fake news are essential for the preservation of the democratic order and the protection of the right to information;
Hypothesis 3: Existing legal mechanisms are sufficient to protect freedom of expression and prevent state censorship;
Hypothesis 4: The Judiciary can intervene ex officio in the fight against fake news and disinformation.

The research aims to contribute to the academic and social debate by analyzing these hypotheses and providing a clearer understanding of the necessary balance between the regulation of information and the protection of fundamental rights. The study will seek to offer insights into how legal and judicial measures can impact freedom of expression and democracy, in line with the justification and objectives of this work.

JUSTIFICATION AND RELEVANCE

This study is motivated by the need to understand the balance between the protection of freedom of expression and the control exercised by state power, paying special attention to the dissemination of fake news, especially in a context in which these issues have gained global prominence.

Freedom of expression is a fundamental and essential right for the functioning of the Democratic State of Law, as it enables citizen participation, public debate and criticism of the government. However, the proliferation of false information and hate speech has raised concerns about the weakening of this right.

The study is justified by the importance of investigating how court decisions and legislation on freedom of expression have impacted this fundamental right. In addition to existing laws, some bills that may also influence freedom of expression will be analyzed, such as Bill No. 2630/20 (Fake News Law). This bill seeks to regulate digital platforms to prevent the dissemination of false content, but it raises questions about the possibility of prior censorship and its implications for fundamental rights. The analysis of Supreme Court decisions that restrict the dissemination of news on social media is crucial to understanding whether these measures, intended to combat misinformation, end up violating the right to freedom of expression.

The relevance of the study is undeniable, as it addresses an issue that concerns both society and the academic community. The discussion about who defines the limits of freedom of expression and how these limits impact democracy is marked by polarization. While some argue that any restriction on freedom of expression undermines democracy, others believe that such restrictions are indispensable to protect the democratic state and guarantee the integrity of information.

The research aligns with the objectives of identifying the legal mechanisms that protect freedom of expression and prevent state censorship, understanding the normative foundations and challenges of this protection, and discussing the legal liability associated with fake news. The study is not only relevant to the legal and academic debate, but also to society as a whole, which faces the challenge of reconciling the need to combat disinformation with the preservation of democratic rights.

Thus, the justification for the study lies in its ability to contribute to a better understanding of the current challenges in regulating information and protecting fundamental rights. The research seeks to offer a critical analysis of the interaction between legal measures against fake news and freedom of expression, promoting an informed debate on how to balance these essential interests for democracy.

Finally, this work aims to contribute to the academic and social debate by examining the protection of the fundamental right to freedom of expression, analyzing the implications of recent legislation and court decisions. The research not only highlights the legal and academic importance of the topic, but also its social relevance, as it directly affects the individual and collective rights of the population. The goal is to provide a better understanding of the issues involved and explore possible solutions to balance the protection of freedom of expression with the need to combat disinformation.

OBJECTIVES
General Objective

The study aims to analyze whether state control over the expression of thought and fake news can violate freedom of expression in the Democratic State of Law through prior censorship.

Specific Objectives
Analyze autocratic, totalitarian and democratic regimes, as well as the functioning of the protection of freedom of expression in the legal system.
Understand the foundations of the protection of freedom rights enshrined in the Constitution and the use of censorship as a form of state control.
Discuss the issue of fake news, addressing the forms of state control and the limitations on the rights to freedom of the press and freedom of expression.
Present the legal forms of compensation for damages and civil liability associated with freedom of expression, by presenting proposals for the exercise of freedom rights in a Democratic State.