Fake news e normatização: uma teorização sobre a regulamentação do fenômeno, a partir do constitucionalismo digital brasileiro

Abstract

This study aims to study the legal aspects for a correct and complete regulation of fake news, as far as possible, under the digital constitutionalism’s paradigm. It is based on the hypothesis that the rules currently in force in Brazil, that is, Laws Nº 12,965/14 (Marco Civil da Internet - MCI) and Nº 13,709/18 (Lei Geral de Proteção de Dados - LGPD), as well as the Electoral Code, amended by Law Nº 14,192/21, are insufficient to regulate the phenomenon. The work initially sought to reconstruct a fake news’ concept, that is not large to advance in the enjoyment of fundamental rights, especially freedom of expression, but also not too restricted, leaving out situations that require protection. After the conceptualization, the aim was to contextualize fake news from the subjective, objective, political and cultural in a Brazilian’s points of view, as well as to list their main characteristics and classification. Subsequently, the study sought to understand digital constitutionalism, choosing the nationalist paradigm from among three major paradigms (exceptionalist, internationalist and nationalist), investigating how the Constitution of the Federative Republic of Brazil responds to the problems arising from digital spaces. Having established these two premises, the study sought to analyze the regulation of fake news in its objective aspect, that is, related to the means of its dissemination, social networks. Subsequently, the substantive aspects of the phenomenon were analyzed, given that the act of lying can be included in the scope of the right to freedom of speech. The substantive and objective aspects were analyzed based on comparative law in the United States and the European Union, as well as the standards established by the Inter-American Court of Human Rights and the Supreme Federal Court. The phenomenon was also analyzed from the perspective of electoral law, given the Brazilian’s normative peculiarity, and it’s closely linked to freedom of speech. Finally, the main legislative proposals currently being processed in the National Congress were analyzed, with emphasis on Bill Nº. 2,630/20, which is at the most advanced stage of processing, and projects proposed between 2020 and 2024.