Liberdade de expressão na internet: desafios regulatórios e parâmetros de interpretação

Abstract

The thesis here developed seeks to address the following problem: which hermeneutic and technical aspects should be taken in consideration when solving fundamental rights collisions involving freedom of expression exercised through the Internet? The search for an answer begins with the base theory of Lawrence Lessig, with the so called four restraints in liberty: Law, norms, market and architecture. The research contextualizes such theory with the issues involving the fundamental right to freedom of expression on Internet. In order to do so, analyzes general issues of fundamental rights dogmatism (limits, limits of limits, collisions) and applies them to freedom of expression, sustaining the need to use the preferred position doctrine not only for offline speech, but also for the one exercised online. Examines, therefore, the challenges regarding freedom of expression connected to Law, norms, market and architecture, analyzing the Brazilian Civil Framework for the Internet, the perception of freedom of expression as a “week” right, the digital divide, the high concentration of power on some big data corporations and the application, through architecture, of issues such as content removal, right of reply and the right to be forgotten. By the end, the research proposes some lines of thought that may serve to orient the cases involving collision of fundamental rights regarding the freedom of expression on Internet, applying the proportionality test (adequacy, necessity and proportionality in a narrow sense) to specific cases related to such fundamental right online.