Limites à liberdade de expressão e pós-verdade no Brasil

Abstract

This work presents a discussion on the right to freedom of expression, both in its general dimension and in specific manifestations, such as: freedom of individual, artistic, political, philosophical, scientific, information and communication manifestations, based on a reading of the 1988 Brazilian Constitution and its association with post-truth today. Post-truth as a phenomenon that challenges democratic regimes around the globe and serves as a means for a shift to the extreme right, from the spread of misinformation on various issues that matter to society, is the starting point for the studies developed in this thesis. The overall objective is to analyze the constitutional provision of freedom of speech and the acceptance of post-truth manifestations, more precisely the fraudulent news as an exercise of this right. The specific objectives aim to analyze the constitutional provision and limits to freedom of speech; identify the post-truth phenomenon, its definitions and characteristics, especially the so-called fake news and, finally, analyze the treatment given by the Federal Supreme Court (STF) jurisprudence to fake or fraudulent news and its implications to the exercise of the right to freedom of speech. Through the analysis of the Constitutional Claim No. 22.328 of 2018 and the Action for Breach of Fundamental Precept No. 527 of 2020 that present discussion on fake news, it is sought to understand the limits circumscribed to those manifestations that appear as fraudulent news in Brazil. This is an exploratory research, with a qualitative approach, using bibliographic and documental analysis techniques, from primary and secondary sources, as well as studies carried out on the theme. As for the methodological procedures, it presents a research with a hypothetical-deductive approach, with the viewing of a duly proposed problem, in which the hypotheses previously presented will be tested for proof and verification of falsifiability. It starts from the observation of recent events to seek the definitions and characteristics of post-truth and the role played by the world wide web in its diffusion. Secondly, the fundamental right to freedom of expression is analyzed, as well as the limits inherent to it are observed through the STF's jurisprudence. It is also sought to identify the fraudulent news, its concept and the debate that arises around the use and adequacy of the term, moving on to disinformation as a broader form of treating fraudulent news, and the treatment given to it by the legal-constitutional system from two models of regulation, which are, the reserve of jurisdiction and regulated self-regulation, and also the decisions of the Supreme Court. At last, the limits and legal contours inherent to the role of freedom of expression in democratic regimes and in the defense of other fundamental rights and guarantees are pointed out, reinforcing its importance in the Brazilian legal system.