POSSÍVEL LESÃO AO DIREITO DE LIBERDADE DE EXPRESSÃO PROPICIADA PELA SUPERFICIALIDADE DA LEI N. 12.965/14

Abstract

The present study aims to analyze the right to freedom of speech in the context of social networks, according to the Brazilian legal system. In this regard, the research aims to answer the following question: To what extent does the superficiality of Law No. 12.965/14 - by restricting its reference to freedom of expression only to enshrine it as a foundation for internet use in Brazil - enables holders of current media to undertake this right? As a hypothesis, it is assumed that the superficiality of Law 12.965/14 propitiates injury against the right to freedom of expression, at the time it does not sanction the online social network provider which proceeds with the exclusion of content and profiles devoid of order court that backs it up. Methodologically, this is a qualitative study, which is classified, as an approach method, as deductive; as to the objective, as exploratory; and as for the technique, such as bibliographic and documental. With regard to the structure, the historical context and the doctrinal and jurisprudential perceptions regarding freedom of expression will be initially outlined; and then, demonstrating the public square’s nature of the social networks, to point out the changes caused in the social exercise of this right and the consequent need for reanalysis of the legal treatment given to this legal asset. Then, the sufficiency of the law no. 12.965-14 will be assessed, in order to the accordance with the constitutional attribution set out in items IV and LIV of art. 5th, to preserve the horizontal effectiveness of this right, including in the Brazilian digital universe. In the end, the notion of the indispensability of a court order prior to any relativization of the freedom of speech will be rescued, in order to demonstrate that the superficiality of Law 12.965/14 provides for the exhaustion of the horizontal effectiveness of that fundamental right, explicitly guaranteed by art. 5, IV, of the Federal Constitution of Brazil.