Liberdade de expressão e a regulação da desinformação on-line: como proteger a democracia?

Abstract

In view of the current problem of disinformation conveyed through virtual social networks and its impacts on freedom of expression and democratic processes, this research aimed to analyze Brazilian treatments for the containment of disinformation disseminated in cyberspace, in order to understand the legitimacy and effectiveness of the regulatory strategies available and under discussion in the country, considering the roles that belong, on the one hand, to the private companies that own these social platforms, holders of knowledge about the technical apparatus of their architecture and design; and on the other hand, the State, in its role of ensuring and promoting the protection and effectiveness of fundamental rights and democratic values in the digital public sphere. In this way, two methodological approaches were used, that is, the bibliographical review of themes such as freedom of expression, democracy, digital age, disinformation and regulation, as well as the jurisprudential analysis of the STF that directly deal with freedom of expression and disinformation in its bulge, in order to assess the limits that can be attributed to freedom of expression in the face of disinformation, with the aim of verifying whether the regulatory models aimed at online discourse in existing virtual social networks (art. 19 of the Civil Rights Framework Internet) and under discussion in the National Congress (PL nº 2.630/2020), meet the criteria of legitimacy and effectiveness. Bearing in mind that in an attempt to regulate online disinformation, due to its harmful effects on democracy by tarnishing the public sphere, this regulation, if not constitutionally well-structured, can bring deeper damage to democracy than disinformation itself, since it can mean a stimulus to censorship and generate a violation of freedom of expression and information, it has come to the understanding that the biggest problem related to disinformation is not necessarily in its content, but in the way it is propagated, through digital media, mainly through virtual social networks. Thus, the regulation to combat the phenomenon and the democratic risks it presents must permeate the recognition of its viral character, and focus more on the structure of social networks and data policies, with a bias less focused on the individual and on the its manifestations and be more focused on the structural plan of the business model of these companies, which indicates a strategy that is shown to be more constitutionally responsive in terms of legitimacy and effectiveness.