Freedom of Expression on Social Media and the Hate Speech Conflict
On December 1, 2020 – at 4:00 pm 0To share
Author: Andressa Rodrigues – Law student at Universidade Paulista.
Advisor’s name: Prof. Dr. Camila Fernanda Pinsinato Colucci – graduated in Law from the University of São Paulo (2000). Master in Civil Law from the University of São Paulo (2014). Professor of Civil Law and Civil Procedure, both on-site and in distance learning. E-mail: email@example.com
Abstract: The article has as its object of study the principle of freedom of expression in social networks, with a focus on Facebook, and the conflict of hate speech.This study will provide a social/legal view of the conflict presented between freedom of expression and hate speech, promoting a better distinction between the principle and the crime, understanding the existing limits of the principle, involving the excessive exercise of the right and its impediment, also analyzing it through the social network Facebook, one of the most controversial social networks in recent years in relation to the manifestations of thought. This study will also understand the existing protection mechanisms on Facebook and the penalties imposed. The impact on the Brazilian legal system will also be studied, observing the procedural aspects. Comparative law is also included in the study, with the purpose of analyzing the methods applied by other countries similar to Brazil. The study will be developed through the qualitative method, in which different interpretations are sought to obtain a better understanding of the subject.websites , among others, in order to provide a better understanding of the subject.https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
Keywords: freedom of expression; hate speech ; social networks; Internet.
Abstract: The article’s object of study is the principle of freedom of expression in social networks, with a focus on Facebook, and the conflict of hate speech. This study will provide a social/legal view of the conflict presented between freedom of expression and hate speech, advancing a better distinction between the principle and the crime, understanding the existing limits of the principle; from him, also analyzing it through the social network Facebook, one of the most controversial social networks in recent years in relation to manifestations of thought. This study will also understand the existing protection mechanisms on Facebook and the penalties imposed. The impact on the Brazilian legal system will also be studied, observing the procedural aspects. Comparative law is also included in the study, with the purpose of analyzing the methods applied by other countries similar to Brazil. The study will be developed through the qualitative method, in which different interpretations are sought to obtain a better understanding on the theme. Bibliographic and documentary methods will also be used, through laws, regulations, doctrines, jurisprudence, scientific articles, internet sites, among others, in order to provide a better understanding on the subject.
Keywords: freedom of expression; hate speech; social networks; Internet.
Summary: Introduction. 1. Fundamental rights and freedom of expression on the internet. 1.1. Philosophical context of freedom of expression. 1.2. Brief considerations on fundamental rights. 1.3. Historical evolution of freedom of expression. 1.4, Freedom of expression: concepts. 1.5. Limits to freedom of expression on the internet. 2. The hate speech on the internet. 2.1. Hate speech concept . 2.2. Classification of hate speech in the Brazilian legal system. 2.3. Facebook hate speech deletion policy and protection mechanisms. 3. The conflict between freedom of expression and hate speech . 3.1. Understanding of the Brazilian legal system. Final considerations. References.https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
The Constitution has undergone a series of constitutional amendments since 1988, encompassing new understandings about the constitutional provisions foreseen, such as art. 5th, items IV and IX. In addition to the impact of the internet, social networks are currently used by 52% of the Brazilian population, according to the report carried out in 2018 called “ Digital in 2018: The Americas ”, released by the companies We Are Social and Hootsuite. Thus, the fundamental guarantees provided for in the Federal Constitution must be preserved in this new scenario, setting the limit to freedom of expression, as well as hate speech.
The relevance of his study can be portrayed through new positions adopted in the current legal scenario. The study will contribute to a new understanding of the principle in face of Facebook, which can be covered by the Internet.
It is necessary to observe the current behavior of society on the Internet. It’s interesting to analyze how people express their opinions and how it affects the rest of users, especially Facebook. The awareness of what can be said or not is very relative, causing this conflict between freedom of expression and hate speech. The crucial point that motivated the research is precisely the distinction between the institutes and the regulations so that individuals can see the definition of freedom of expression and hate speech more clearly , so that this act can be inhibited and improved. the use of the social network, in favor of non-violence and disrespect for fundamental rights.https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
This article will address, firstly, a brief historical/philosophical context of freedom of expression, for a better understanding of the studied principle, as well as the concepts of several Brazilian jurists. Afterwards, we approach the debate object of this monograph: what is the limit of freedom of expression on the internet.
Further on, hate speech on the internet will be discussed, with the aim of conceptualizing and having a legal view of this act practiced on the internet, including the discussion about the policy of exclusion of hate speech on Facebook.
In the last chapter, it is intended to present the Brazilian legal understanding regarding this conflict, verifying if there are sufficient mechanisms to inhibit this practice, either on Facebook or through typification in the Penal Code. The study aims to bring new understandings to the Brazilian legal system to improve and evolve its decisions and methods that are currently used.https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
Freedom, according to the Portuguese Language Dictionary Priberam, is the “right to proceed as we see fit, as long as this right does not go against the rights of others; condition of the man or nation that enjoys freedom; set of liberal ideas or rights guaranteed to the citizen” (PRIBERAM, 2020, online ).
- FUNDAMENTAL RIGHTS AND FREEDOM OF EXPRESSION ON THE INTERNET
1.1. Philosophical context of freedom of expressionhttps://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
The context will be portrayed with the meaning of freedom, through the book “The Dictionary of Philosophy”. It will be contextualized with concepts from philosophers who have more reflections on freedom, being organized chronologically. First, the meaning of freedom according to philosophy will be addressed, with three fundamental points for understanding the concept. Afterwards, the unfolding of freedom, carrying out a historical rescue for a better understanding of the evolution of the understanding of freedom. It is important to emphasize that the analyzed freedom is framed in the western world.
Freedom, according to the philosophy , “ […] is the set of rights of each individual, whether considered alone or in a group, before the government of the country in which they reside; it is the power that any citizen has to exercise his will within the limits of the law.” (SÉRGIO, 2017, online ).
When analyzing the emergence of the idea of freedom, it is necessary to look at history from Ancient Greece. Festugiere (1953, apud ROBERTO, 2017, online ), in his work “La liberad in la Grecia antigua”, portrays that the word freedom and its idea appears in Greek literature referring to the political life of the time. For Festugiere , the main objective was the distribution of political power, naming, thus, the term freedom. Thus, one can clearly see the real meaning of freedom for the people of Athens:https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.htmlhttps://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
“In Athens, freedom had a positive extension and was related to the active and collective participation of political power. It meant that the individual, in the polis, belonged to the social group and was not subordinate to anyone. This character of freedom, as a link to the social group, made it considered a status. Whoever belongs to the social group is free . Those who were not free were considered outsiders. In relation to non-subordination to anyone, this meant participating in the deliberations of the political life of the polis” (ROBERTO, 2017, online ).
The Dictionary of Philosophy (ABBAGNANO, 2007, p. 606) alludes to three fundamental meanings of freedom.
The first meaning expresses self-determination or self-causality, in which freedom is the absence of conditions and limits. The foundation for this meaning is in Aristotle (384 to 322 BC), Greek philosopher and founder of the peripatetic school and the Lyceum, where his vision is based on absolute freedom, the individual acting with free and spontaneous will (ABBAGNANO, 2007, p. 606).https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
Established self-determination is considered as a self-creation, thus becoming the “self-creation of the self”. When creating something unpredictable, it is free from any cause, as equal causes have equal effects and, in view of this, freedom is identified as a process of conscious life. Free will, on the other hand, is found in the unpredictability of human facts and self-causality (ABBAGNANO, 2007, p.606).
Thus, the free individual is the agent of events, acting freely and consciously (QUEIROZ, 2013, p.4). That is, man himself has the ability to reason and decide, in a free and spontaneous way. “Man is the principle and the father of his actions, as well as of his children” (ABBAGNANO, 2007, p. 606).
The philosopher maintains that freedom is a guiding principle, linked to the individual’s action or omission. Thus, the actions depend exclusively on their agents, being able to decide between a good or bad action. It should be noted that freedom is linked to being, with the absence of facts that can contribute to the determination of choice, that is, there is no type of coercion (ZAPAROLI, 2016, p.239).https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.htmlhttps://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
The Aristotelian doctrine also finds that choice is linked to freedom, assuming that freedom is widespread in our choices, we are facing a process of decisions, in which a spontaneous act is chosen among the others, without any interference ( ZAPAROLI, 2016, p. 240).
Thomas Hobbes (1588-1679) was influenced by Aristotle’s thoughts, stating that choice is unconditional, having the ability to choose something without any influence. The state of nature pointed out by Hobbes demonstrates the appearance of the natural right, that is, the natural freedom that the individual has to use his power for any purpose, without the presence of any impediment. This feeling of unconditional freedom is linked to the state of war imposed at the time, in which individuals are on constant alert and, with this feeling, enter into contracts in which these natural rights can be exchanged (MACHADO MENDONÇA, 2009, p. 2).
Hobbes stated in his work, “Leviathan” that:https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
“Freedom is understood, according to the meaning of the word, the absence of external impediments, impediments that often take away part of the power each one has to do what he wants, but cannot prevent him from using the power he has left. , as his judgment and reason dictate to him” (HOBBES, 1651, p. 47).
The conflict between the individual’s decision-making power and the absolute power that governs the entire system is evident to him. The human being has the freedom to decide, without any obstacle, however, the absolute power that governs all things directly affects this characteristic of being: freedom (HOBBES, 1651, p. 47).
The second fundamental meaning is necessity, based on the concept of precedent, self-determination, but giving it to the totality to which the individual belongs. The individual lives in accordance with nature, so that actions continue after a certain act, but for it to be “initiated”, the individual’s will and permanence in his power are necessary (ABBAGNANO, 2007, p. 607) .https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
With this narrative, it must be analyzed that only God is free, as only He could act based on the laws of his nature without obligation (ABBAGNANO, 2007, p. 607). As Hannah Arendt (1906-1975) emphasizes, “for the history of the problem of freedom, the Christian tradition has in fact become the decisive factor. Almost automatically we equate freedom with free will” (ARENDT, 1972, p. 28).https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
The concept of freedom addressed by St. Augustine (354-430 AD) brought some questions related to freedom and free will. The dilemma between free will and predestination has given rise to a deep discussion. For him, reason should not prevail over passions and vice versa. Therefore, the vision of freedom spreads with the free will imposed by God on men, being able to decide between a virtuous life, alongside God, or a life with sins, keeping distance from the divinity (AGOSTINHO, 1999, p. 70 ).
St. Thomas Aquinas (1225-1274) differs from the thought of St. Augustine, as he determines freedom as a series of freedoms, not being unique, applying to God, angels and men. Man’s freedom has another range of meanings, such as freedom of choice, morality, characterizing free will, granted by God (AQUINO, 2002, p. 65). Free will was established for the human being to demonstrate the capacity that the individual will be able to resist sin, acting according to his own will.https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
Freedom, when approached by two Christian philosophers, has an automatic link with the free will imposed by God. However, the difference between these two institutes should be highlighted. Freedom differs from free will in the way it operates. Freedom is directly linked to external circumstances, while free will is linked to the individual’s inner self. The individual may have his freedom oppressed, denied, but his free will will not be denied, as this is disposed within, not characterizing an oppression, unless there is a deprivation from birth, causing the individual’s high ignorance ( ROBERTO, 2017, online ).
Thus, in the Christian view, freedom is not contextualized in the external form. An individual who is physically imprisoned does not have his freedom violated, as true freedom is within him, that is, his mind and soul (ROBERTO, 2017, online ).
Regarding the other important point of the second meaning, Baruch Espinosa (1632-1677) defends freedom as an element of identification of “being”. To be free, in his understanding, means to act according to his nature. The man acting according to himself is associated with the idea of freedom, as well as this notion of responsibility, assuming the acts and answering for them (REZENDE, 2006, p. 77).https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.htmlhttps://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
The free will present in the thoughts of Christian philosophers and Spinoza is similar to that of Gottfried Wilhelm Leibniz (1646-1716). It demonstrates that freedom is human action, that is, human action is spontaneous, being responsible for its acts and consequences, and thus, in other words, free will (SOUZA, 2006, p.97). From the same point of view, for Immanuel Kant (1724-1804), freedom is autonomy, a right of the individual to dictate his own rules, but it can only happen if he has knowledge about morality, not just the perception of one’s own will. . Kant also states that freedom is free will and should not be related to any law (MIRANDA, 1970, p. 395-452).
In affirming that freedom is in conformity with nature, Jean Jacques Rousseau (1712-1778), in the work “On the Social Contract” expressed the following phrase: “to renounce freedom is to renounce the quality of man” The philosopher had an influence on the Revolution French, marked by the Declaration of the Rights of Man and of the Citizen, guaranteeing the principles of freedom, equality and fraternity, motto of the Revolution. Summarizing his works, his conception of human being is due to the conception of society. That is, for Rousseau, man is by nature good, but society corrupts him. Freedom is found in the quality of the human being, and if a loss occurs, the human being will certainly not survive. Freedom, for the philosopher, is essential for the survival of the individual (ROUSSEAU, 2001, p. 17).
The ultimate meaning for freedom is possibility or choice, as freedom is limited and conditioned, that is, finite. That is, each individual is responsible for their choices, and any deity is excluded. However, the choices are delimited, as there is the degree of objective possibilities, in restricted numbers, order of reasons for the choice and objective possibilities. Therefore, this concept of freedom emphasized in possibility or choice is a way of admitting the individual’s determination by the conditions that his act corresponds, without being aware that, based on some conditions, the choice is predictable (ABBAGNANO, 2007, p. 608) .https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
When approaching the power of decision and the freedom to decide, without any external factors, René Descartes (1596-1650) determines “freedom” as who best understands the alternatives that precede the choice. Thus, the more the individual acquires knowledge and access to information, the greater the chances of him opting for an alternative that he understands to be correct according to his thoughts (TEIXEIRA, 2014, p. 32).https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
Jean-Paul Sartre (1905-1980), with a different view, determines that freedom is the ontological condition of being. His thesis about freedom is: freedom is absolute or does not exist, being the central nucleus of his thinking and summarizing his entire doctrine. It is critical of Luther’s thought, denying the existence of God, because freedom is absolute. Human beings are just not free when they make choices, according to the philosopher, and the responsibility for this is the limitation of their freedom (SÉRGIO, 2017, online ).
Outside the parameters imposed by the “Dictionary of philosophy”, the vision of Socrates (469 to 399 BC), defender of freedom of thought and expression at the time, changes the existing paradigms and with his philosophy of “knowing yourself”, addresses a whole concept that, in order to determine freedom, begins with three concepts: the first is freedom as a way of life for the State and the individual in the State and in society; the second conceives freedom as a presupposition of all ethically responsible action and, therefore, limitations that restrict freedom will be considered; and third, questioning, in the cosmological and theological perspective, it is possible to affirm the freedom of human action (MIRANDA, 1970, p.395-452).https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
Plato (429 to 347 BC), disciple of Socrates, understood freedom similarly to Socrates’ view, holding that the individual’s soul is completely pure, different from his body and flesh, part infested by mundane mutability (MACHADO MENDONÇA, 2009, p . two). For this reason, death is seen as a liberation from the purity of the human being: the soul. The individual has the choice to live in virtue, according to morality or not (CHAUÍ, 1995, p. 466).
There are those who view freedom as an act that contests any type of authority, as is the case with Mikhail Aleksandrovich Bakunin (1814-1876), who, in turn, establishes freedom as a “full development of all faculties and powers of every human being , for education, for scientific training, and for material prosperity”. This conception can only be realized in society. (MATEUS, 2011, p. 18).
Analyzing from the point of view of freedom inserted in society, Karl Marx (1818-1883), under the influence of Georg Wilhelm Friedrich Hegel (1770-1831), has the understanding that the being will only find freedom when practicing together with other people , transforming objective circumstances in order to create the objective world of their faculties, senses and aptitudes. He criticizes the metaphysical conceptions of freedom addressed by Schopenhauer, because if individuals are deprived of their own material conditions (ie, private property), there would be no freedom, society would only be divided into proletarians and capitalists. In his view, communism would be a form of free association of producers, totally different from capitalism, because, if there is any change in the capitalist regime,https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.htmlhttps://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
Thus, Guy Debord (1931-1994) also criticizes the capitalist system, as in this society, life is divided into work time (not free) and leisure time (domesticated choices). For him, freedom is illusory, as all the choices that the individual will make are already predetermined by others (SÉRGIO, 2017, online ).
The vision of illusory freedom is also embedded in the thoughts of Arthur Schopenhauer (1788-1860). He believes that human action is not completely free. Man, according to the philosopher, does not have freedom of action because he is not free to deliberate on his will. Man does not choose what he wants, what he wants and, thus, he is not free, he is determined to act according to his will, which is a consequence of the objectification of the metaphysical will behind natural events (COSTA, 2013, p. 10) .
The paradigms imposed by the “Dictionary of Philosophy”, being freedom as the absence of conditions and limits, freedom as a necessity, in accordance with nature and freedom as a choice was not delimited by Socrates, Plato, Jean-Paul Sartre, Karl Marx, Mikhail Aleksandrovitch Bakunin, Guy Debord and Arthur Schopenhauer (ABBAGNANO, 2007, p. 606). The analysis of thought departed from other assumptions, such as absolute freedom, contesting the authorities, criticism of the capitalist system, considering freedom as something illusory.https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
It is also fundamental to conceptualize an assumption used by John Locke (1632-1704) about freedom. With the expression “where there is no law there is no freedom”, there are two types of freedom: natural and civil. Natural freedom “consists in being free from any superior power on Earth and in not being subject to the will or legislative authority of man, but having as a rule only the law of nature.” Civil liberty, on the other hand, “consists in not being subject to any legislative power other than that established in the political body by consent, nor under the control of any will or under the restriction of any law other than those enacting the legislature (LOCKE, 1998, p. .135).
When analyzing the various thoughts of freedom above, it can be considered that freedom also has an influence on the circumstances in which it was analyzed and the period discussed. In Greek philosophy, for example, the thoughts of Socrates and Plato assumed freedom from an analysis of the state’s authority at the time and its individualized freedom. Saint Thomas Aquinas and Saint Augustine, in the Christian period, approached freedom from the perspective of God, and Karl Marx and Guy Debord carried out a critique of political-economic systems. Philosophy was marked as a crucial point in the development of freedom in society and in the individual, with a possible definition of freedom in a subjective way (SÉRGIO, 2017, online ).https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
1.2. Brief Considerations on Fundamental Rightshttps://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
The fundamental rights for the North American Legal Realism is a historical construction of humanity (CAVALCANTE FILHO, [201-], p. 5). There is an approach in philosophical contextualization that describes the relativity of the meaning of freedom among philosophers, considering the period and circumstances in which they found themselves. With fundamental rights it is no different, which must be analyzed at the time and place in which it was entitled. João Trindade cites, as an example, France, comparing it with the current concept of fundamental right:
“In the France of the Revolution, for example, fundamental rights could be summarized as liberty, equality and fraternity; nowadays, however, the concept of fundamental rights even reaches an unimaginable issue at that time, such as the right to an ecologically balanced environment (CF, art. 225, caput) “(CAVALCANTE FILHO, [201-], p. 6)
Norberto Bobbio also establishes that a fundamental right is a historical construction:https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
“[…] human rights, no matter how fundamental, are historical rights, that is, born in certain circumstances, characterized by struggles in defense of new freedoms against old powers, and born gradually, not all at once and not once and for all. (…) what seems fundamental in a historical epoch and in a certain civilization is not fundamental in other epochs and in other cultures […]” (BOBBIO, 1992, p. 5).
It is interesting to emphasize the historical rescue of fundamental rights, starting with the formalization of rights and duties.
The first written code of laws was the Code of Hammurabi, created in Mesopotamia in the 18th century BC Inspired by the Laws of Talion, King Hammurabi materialized the existing regulations that determined the rights and duties of individuals at the time, which were verbally informed (SILVA, 2006, online ).https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
This Code aimed to defend life and property, paying attention to the basic rights of individuals, such as dignity, family, honor, etc. It is important to emphasize that this code was the first to physically regulate the rights and duties of each individual (ANDRÉ DA SILVA, 2006, online ).https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
The first written Constitution was the Federal Constitution of the United States of America, in 1787. This was certainly a historic landmark, even without a proper declaration of rights, which was included through amendments over the years (CAVALCANTE FILHO, [201-], p. 6). From this point onwards, fundamental rights played an important role in the Constitutions.
In the words of João Trindade Cavalcante Filho (CAVALCANTE FILHO, [201-], p. 6), we can define fundamental rights as: “[…] rights considered basic for any human being, regardless of specific personal conditions. These are rights that make up an intangible core of human rights subject to a given legal order”.
The basic rights initially determined were linked to the individual’s intimacy and the State: human dignity and the rule of law. Human dignity is the recognition of the human being properly as he is. The Rule of Law is linked as the limited State, contrary to the Absolute State. For José Afonso da Silva, there are three indispensable characteristics of the Rule of Law: submission of society to the rule of law; separation of powers and guarantee of fundamental rights (CAVALCANTE FILHO, [201-], p. 7).
These fundamental guarantees are considered by natural law as pre-positive rights, that is, rights that arose even before society was bound by Constitutions and norms. However, this does not interfere with the condition of the positive laws covering pre-positive rights, where the majority is already publicized (CAVALCANTE FILHO, [201-], p. 8).
João Pedro Zambianchi Caetano expressed that fundamental rights:
“[…] they are works of a slow and gradual process of social and historical changes, the result of several centuries of collective struggles, which aimed to limit state power and guarantee the minimum rights to people, which, without a doubt, thanks to this whole process , we were able to enshrine important principles and fundamental guarantees, which currently support us and are incorporated into the common heritage of humanity […]” (CAETANO, 2016, p. 3)
Some important features must be mentioned about the fundamental right, such as relativity. The fundamental right is not absolute, as there is a relativization of these rights. Freedom of expression itself is not absolute, as it conflicts with other principles that should be analyzed succinctly and in the specific context, as stated by Paulo Gustavo Gonet Branco (CAVALCANTE FILHO, [201-], p. 8):https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
“[…] fundamental rights may be subject to limitations, not being, therefore, absolute.[…] Even the elementary right to life has an explicit limitation in item XLVII, a, of art. 5, in which the death penalty is contemplated in the event of a formally declared war” (BRANCO, 2007, p. 230).
In this same sense, imprescriptibility is also a characteristic of the fundamental right, in which there would be no sense in having a prescription for an essential right. Inalienability is also present to verify the impossibility of transferring, donating or selling subjective rights (CAVALCANTE FILHO, [201-], p. 8).
Unavailability or non-waivability determines that no fundamental right may be available, but here are some important exceptions to be analyzed, such as privacy, but it should be temporary (CAVALCANTE FILHO, [201-], p. 9) .
With regard to effectiveness, we are faced with two aspects: the vertical effectiveness, which encompasses the relations between the State and the citizen, and the horizontal, which encompasses the relations between individuals-citizens (CAVALCANTE FILHO, [201-], p. 8).
Entering into a classification of fundamental rights, the generations or dimensions are based on 3 types: 1st generation/dimension, which refers to individual rights; 2nd generation/dimension, which concerns social rights; and 3rd generation/dimension, regarding diffuse rights This classification corresponds to the motto of the French Revolution: liberty, equality and fraternity. 
France brought, through the French Revolution, an important role in law, developing and consolidating fundamental rights. Protests against the abuse of power by the king and pope against the privileges imposed on the clergy and the nobility and the struggle for religious freedom helped to achieve fundamental rights. Important events marked the achievement of these rights, such as the fall of the Bastille. “Kant” brought freedom as a tool for society, urging the population to force the State to respect fundamental rights (MENDONÇA, 2009, p. 5-7).
Paulo Bonavides expresses that “first generation rights or rights to freedom are entitled to the individual, are opposable to the State, are translated as faculties or attributes of the person; in short, they are rights of resistance or of standing before the State”. First generation rights are intended to demand from the State a position of protection of human rights. The existing opposition is linked to the authority that the State has in relation to individuals, which should reduce arbitrariness and impose itself on individual rights (MENDONÇA, 2009, p. 9).https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
1.3. Historical evolution of freedom of expression
In 1789, the Declaration of Human and Citizen’s Rights was created, guaranteeing individual rights, in addition to the principles of freedom, equality, property and legality. This Declaration stabilized the main guarantees of the human being, collaborating with the unification of rights (MACHADO MENDONÇA, 2009, p. 9).
In the 20th century, the UN Universal Declaration of Human Rights was an international landmark in the promotion of world peace, including the relationship between countries and the inclusion of human rights in the list of basic principles of every nation (ANDRÉ DA SILVA, 2006, online ).
The Federal Constitution of 1988 used the provisions included in the Universal Declaration of Human Rights. The promotion of the objectives imposed are present in the Brazilian Constitution, imposing the need to recognize the dignity of the human person, freedom, equality and peace (ANDRÉ DA SILVA, 2006, online ).
Existing fundamental rights are basic human rights, which must be safeguarded and protected before society and the State. Freedom, present in first generation rights, is included in the list of fundamental rights and guarantees of the Federal Constitution, including the scope for freedom of expression, artistic and religious freedom, etc. (ANDRÉ DA SILVA, 2006, online ).
Freedom of expression was based on a long process of evolution. Just as the right emerged from demonstrations, freedom of expression was based on the same principle. Groups opposed to certain regimes, which fought for freedom of expression and expression, brought to light one of the fundamental principles (BOBBIO, 1992, p. 6).
Freedom of expression, or the idea of freedom, emerged through political liberalism, bringing a movement of ideas, defending a new structure of production and power in society, known as the Enlightenment (COSTA, 2013, p. 3).
The right to freedom of expression originated in English law, in the Declaration of Rights of 1689, providing that “freedom of expression within Parliament, as well as in debates or referrals, can only be restricted or questioned by Parliament itself” (ANDRADE , 2017, online ).https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
Successively, freedom of expression was established in the Declaration of Human and Citizen’s Rights, in 1789, assuming the character of a human right:
“Art. XI – The free communication of thought and opinion is one of man’s most precious rights: every citizen may therefore speak, write, print freely, except when he has to respond to the abuse of this freedom, in the cases provided for by law” (FRANCE , 1789).
Constitutions of other countries such as Mexico, in 1917 and Germany, in 1919 (Constitution of Weimar) included in their list of rights the “manifestation of freedom of thought”, being “inviolable the freedom of the press and no law or authority can establish censorship prior, respecting private life, morals and public peace” (ANDRADE, 2017, online ).
After World War II, the concepts of freedom and equality were disconnected from what was established in the Declaration of Human and Citizen’s Rights. Freedom meant the end of slavery and the free choice of work. In this sense, equality meant everyone was facing the same law and the same penalties, and freedom of expression demonstrated an individual’s action against oppression and the end of authoritarianism, anyone being able to express their opinion (COSTA, 2015, p. 3).
With the end of the war, society as a whole guarded itself in promoting a new understanding of freedom, matching the needs of society, such as freedom of association, for example, as the freedom previously imputed was no longer in line with the current need of the time, to be free without any penalty or restriction. Thus, social justice, human dignity, fair remuneration, the right to housing, free education and security were the pillars for a new Declaration and, this time, a Universal Declaration of Human Rights, monitored by the Commission on Human Rights of the Organization of the Nations United (UN) (COSTA, 2015, p. 4).
Thus, the Declaration (UN, 1945) provided, in its article 19, on freedom of expression:
“Article XIX. Every human being has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and transmit information and ideas by any means and regardless of borders.”
The member countries of this Declaration have established the regulations in their Constitutions. In Brazil, the first Constitution, the Constitution of the Empire, promulgated in 1824, already provided for freedom of thought and communication. In its article 179, it provided:
“Art. 179. The inviolability of the civil and political rights of Brazilian citizens, which is based on freedom, individual security and property, is guaranteed by the Constitution of the Empire, as follows:
4) Everyone can communicate their thoughts, in words, in writing, and publish them in the press, without dependence on censorship; as long as they have to answer for the abuses they commit in the exercise of this right, in the cases, and in the form, that the law determines” (BRASIL, 1824).
The Constitution of the Empire was directly influenced by the French Constitution of 1791 and the Constitution of Spain of 1812 (VAINFAS, 2002, p. 170). It was considered one of the most liberal of the time, where it stood out, mainly, in religious freedom, allowing religious temples and total freedom of worship, without any discrimination (LUSTOSA, 2007, p. 175).
This right remained in the Constitution until 1937. With the arrival of Getúlio Vargas, the government adopted censorship as a measure of repression and impediment to the reproduction of information, and any type of sharing was prohibited at the time (COSTA, 2015, p. 5). There were no guarantees related to freedom of expression until the government weakened in this period.
Between 1968 and 1975, Brazil was under a dictatorial regime, in which one of the measures imputed was censorship. This measure was applied without distinction. Initially, censorship occurred in communication, that is, phone calls and letters were analyzed by the government. Afterwards, the censorship was applied to the organs of dissemination of the resistance groups to the government. At the same time, divergences in command at the time occurred. The Executive was under the command of military personnel called “hard-liners” and, with the arrival of Ernesto Geisel, the military did not welcome him in the best way, which led to a decrease in censorship (AQUINO, 1999, p. 1-3) .
After this period, in 1988 with the promulgation of the Federal Constitution, the right to freedom of expression in Brazil was determined as a fundamental right (FAUSTO, 2003, p. 529).
By calling the Democratic Rule of Law, Brazil went through a process of redemocratization after the period of dictatorship. The restructuring to adapt the new fundamental rights established in the Constitution opened opportunities for new understandings of freedom of expression, as occurred in the post-World War II period, in which the concepts of freedom and equality no longer had the same purpose (SÉRGIO, 2017, online ).
This same fact occurred in Brazil. Freedom of expression was already present in the Constitution of 1824, however, after 1988, this understanding was changed, expanding its concept and applying to new circumstances, such as the internet and social networks, being impossible to predict at that time ( SÉRGIO, 2017, online ).
In the Federal Constitution of 1988, the principle of freedom of expression was included in article 5, together with other fundamental rights and guarantees and in art. 220, thus, a fundamental and non-transferable right, becoming a requirement for the existence of a democracy (BRASIL, 1988):
“Art. 5th All are equal before the law, without distinction of any kind, guaranteeing Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property, in the following terms:
IV – the manifestation of thought is free, anonymity being prohibited;
IX – the expression of intellectual, artistic, scientific and communication activities is free, regardless of censorship or license;
Art. 220. The expression of thought, creation, expression and information, in any form, process or vehicle, shall not be subject to any restriction, subject to the provisions of this Constitution.”
The Federal Constitution broadly addressed freedom of expression through these devices. Article 5 sought to cover all human beings without any distinction whatsoever, regardless of color, race, sex, political ideology, etc. The guarantees imposed in the article for not only native Brazilians, but for naturalized Brazilians and resident foreigners, were also included, demonstrating the full scope of these guarantees imposed: the inviolability of the signed rights.
In item IV, the freedom of expression of thought was provided with reservations to anonymity. Every individual has the freedom to express their thoughts, through their representation and recognition of the manifestation, with anonymity being expressly prohibited.
Item IX demonstrates freedom of expression of all kinds, bringing censorship as a non-preventing factor, not even the license for the individual to express themselves, demonstrating the integrity of the right. The individual’s freedom to express themselves through artistic and scientific activities, including communication, through newspapers, for example, is guaranteed, entitlement to an item on press freedom.
The determinations imposed in art. 5th were mentioned again in art. 220, demonstrating the scope of freedoms, without any type of restriction.
First, the determination of the inviolability of liberty reinforced the characteristic of a fundamental right. André Ramos Tavares (2009, p. 596) comments that thought is the judgment of value. The ability to think is contained in all people who are mentally healthy and have a minimum of discernment.
The externalization of thought where it submits to existing limits is not equivalent to the individual’s act of thinking, in a free way, there being no external control in front of this, only the individual has full control of his thoughts. The State does not have the capacity to gain control over the intimate of each one, however, the censorship imposed in periods such as the dictatorship in Brazil demonstrates the capacity to restrict any expression of thoughts.
The censorship, provided for in art 220, §1, CF/88, which determines the prohibition of any and all censorship was also portrayed in such a way as to express the prohibition of any act of restriction against the manifestation of thought, creation, expression and information (BRASIL, 1988).
Censorship, basically, is the action of disapproval and removal from public circulation of a given content, with a justification of preserving society’s morals or determining which content should be published. This act, as we have seen, is present in authoritarian regimes, in which the government seeks to have total control of all information (CARVALHO, 2019, online ).
Prior censorship, provided for in the Federal Constitution, is related to content analysis to determine age classification, not directly affronting freedom of expression, as established by the American Convention on Human Rights of which Brazil is an integral part, in addition to ratifying the right to freedom of thought and expression, provided for in article 13:
” 13.1. Everyone has the right to freedom of thought and expression. This right includes the freedom to seek, receive and disseminate information and ideals of all kinds, without regard to borders, verbally or in writing, or in printed or artistic form, or by any other process of your choice.
13.2 The exercise of the right provided for in the preceding item cannot be subject to prior censorship, but to further responsibilities, which must be expressly established by law and be necessary to ensure:
- a) respect for the rights or reputation of other people; or
- b) the protection of national security, public order, or public health or morals.
13.3. The right of expression cannot be restricted by indirect ways or means, such as the abuse of official or private controls over newsprint, radio frequencies or equipment and devices used in the dissemination of information, or by any other means intended to prevent the communication and circulation of ideals and opinions.
13.4. The law may subject public shows to prior censorship, with the exclusive purpose of regulating access to them, for the moral protection of childhood and adolescence, without prejudice to the provisions of item 2.
13.5. The law must prohibit all propaganda in favor of war, as well as any apology for national, racial or religious hatred that constitutes an incitement to discrimination, hostility, crime or violence.”
It is noteworthy that the prohibition of the promotion of war and the apology for hatred was expressed in item 13.5. The freedom that the individual has to express himself has its reservations when determining the possibility of prior censorship and prohibiting the promotion of content that makes an apology for war, hatred and prejudice. The American Convention on Human Rights, signed on November 22, 1969, with the objective of consolidating a regime of personal liberty and social justice (American Convention on Human Rights, 1969), provided an example of the exercise of the right to freedom of expression , as well as the limits imposed, in favor of respect and protection of society, emphasizing the prohibition of any device that could corrupt the passage of information, much used in periods of war and dictatorships.
From the documents cited, it is pertinent to say that freedom of expression is an essential requirement for the existence of a democratic society and/or any type of democracy. In a democratic regime, there is no control of content by the government, thus allowing any citizen to express their opinion without any type of censorship (SÉRGIO, 2017, online ).
The individual’s right to express himself is one of the characteristics of democracy. The “government of the people” demonstrates the direct or indirect participation of the citizen in the decisions of the State. Therefore, a censorship of the freedom to express oneself will directly affect the essence of democracy (CÔRREA, 1965, p. 60).
Marcus Vinicius Furtado Coêlho treats freedom of expression as a thermometer of the Democratic State. Thus it disposes:
“[…] freedom of expression is a fundamental right enshrined in the Federal Constitution of 1988, in the chapter that deals with Fundamental Rights and Guarantees and works as a true thermometer in the Democratic State. When freedom of expression begins to be curtailed in a certain state, the tendency is for it to become authoritarian. It serves as a decisive instrument for controlling government activity and for exercising power itself. The democratic principle has an inseparable element which is freedom of expression, in contrast to this element, there is censorship which represents the suppression of the democratic State. The divergence of ideas and the right to express opinions cannot be restricted so that true democracy can be experienced” (COELHO, 2011, online ).
When we are faced with a situation where freedom of expression is being curtailed, the Democratic State is at risk. According to Coêlho (COELHO, 2011, online ) if the right to freely express oneself is at risk, there is an indication of the State becoming authoritarian, as there is no Democratic State without freedom of expression, becoming one of the main fundamental rights of democracy.https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
1.4. Freedom of expression: concepts
The Michaelis Portuguese Language Dictionary (MICHAELIS, [201-], online ) brings a series of meanings of freedom and expression. Freedom “is the level of total and legitimate autonomy that represents the highest ideal of a citizen, a people or a country; it is the power to act freely, within an organized society, within the limits imposed by law; it is the faculty of the individual to decide for what suits him best; it is the extinction of every oppressive element that is illegitimate; it is the condition of a free individual; it is the autonomy to express yourself according to your will; it is the condition of a being who does not live in captivity etc (MICHAELIS [201-], online )”.
Expression, in terms of the Dictionary, “is the act or effect of expressing; the externalization of ideas or thoughts through gestures or words; the emphatic way of pronouncing a word or a phrase; the display of energy and liveliness; how the face, voice and/or gesture reveal an emotional state or mood; the significant and important manifestation etc (MICHAELIS, [201-], online )”.
The need to conceptualize freedom of expression may be initiated by the very meaning of words. In short, freedom demonstrates the individual’s ability/possibility to act freely, according to his/her will. Expression comes down to expressing your thoughts through speech or action (MICHAELIS, [201-], online ). Thus, it can be said that, freedom of expression is the individual’s possibility to be free to externalize his thoughts.
From a doctrinal point of view, freedom of expression reaches another level of concept, attributing a legal view and within the constitutional scope of the principle.
José Cretella Júnior (1920-2015), Brazilian jurist, analyzes item IV of art. 5 of the Federal Constitution of 1988 and provides that:
“[…] free” is synonymous with “uncensored”, “unprisoned”. “Manifesting” is “revealing”, “projecting”. Manifested thought is what is declared, what projects itself in the world, becoming known and, therefore, generating legal and social consequences. The manifestation of thought through the oral or written word is one of the supreme public freedoms of the human being. The Brazilian Constitutions successively consecrated the free communication of thought, without dependence on censorship, each one being responsible for the abuses they commit, in the cases and in the form that the law prescribes” (CRETELLA JÚNIOR, 2000, p. 212).https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
Freedom of expression is the manifested thought, bringing legal and social consequences. The prohibition of anonymity is justified by the individual’s need to be responsible for its expression. José Cretella Júnior used the meanings of words to conceptualize freedom of expression.
Celso Ribeiro Bastos (1938-2003) and Ives Gandra Marins, Brazilian jurists, establish that historically the manifestation of thought figures in the first lists of individual rights, citing the Declaration of Human Rights as the basis for freedom of expression:
“[…] This is how the 1789 Declaration of Human Rights provides the following provisions: “No one can be disturbed by their opinions, even religious ones, as long as their manifestation does not disturb the public order established by law”. Art. 11 of this same document ends up reinforcing this idea by stating: “the free communication of thoughts and opinions is one of the most precious rights of man; every citizen can therefore speak, write, express themselves freely, subject to being liable for the abuse of this freedom in cases determined by law” (BASTOS, MARTINS, 2004, p.44).
The freedom to express oneself is not subject to restriction, as is the case cited in religious discourses, where everyone has the freedom to speak and express any and all thoughts that do not confront public order.
Jurists exemplify freedom of expression with freedom of opinion, which allows one to have or not to have religious beliefs. In other words, in this case, these should be expressed through freedom of worship. It is emphasized that the freedom of thought arises, firstly, to realize the freedom to express oneself through the cults. Freedom of the press itself, on the other hand, allows the communication of opinions. The prohibition of anonymity is a peaceful understanding among these jurists, in view of the individual’s need to express themselves responsibly (BASTOS, MARTINS, 2004, p. 45).
For Manoel Gonçalves Ferreira Filho, the freedom to express oneself is a fundamental characteristic of personality and he understands the possibility of violating this principle for research purposes:
“[…] The manifestation of thought can, however, be directed to others and not just express the individual’s convictions, without the concern of the individual that others perceive it or not. This freedom, a fundamental expression of personality, is also enshrined, but under different regimes, according to its social importance.[…]” (FILHO, 2003, p. 295-296).
Confidentiality in criminal investigations or criminal procedural instruction can be broken to achieve greater success in the processes, which includes breaking confidentiality in other private data of the individual that can help in the investigation, such as social networks (WhatsApp, Facebook, Instagram, Telegram etc.).
In addition to this exception, there are other reservations about freedom of expression. Alexandre de Moraes, Minister of the Federal Supreme Court, considers that freedom of expression is free and guaranteed in the Federal Constitution, with the exception of prior censorship in public shows  . The jurist also comments on the abuse in the exercise of the expression of thought, resulting in the due responsibility of those who practiced it (MORAES, 2017, p. 53).
Moraes further determines that: “Freedom of expression and expression of thought may not be subject to any prior limitation, with regard to censorship of a political, ideological and artistic nature”, with the exception of prior censorship of public performances, even if contrary to the constitutional text (MORAES, 2017, p. 56).”
Minister Alexandre de Moraes argues that this type of censorship has a preventive character, aiming at the well-being of children and adolescents in the reproduction of content, as determined by Minister Celso de Mello, when expressing that “freedom of expression is an inherent and indispensable condition to the characterization and preservation of free and organized societies under the aegis of the structuring principles of the democratic regime” (AI 675276 AgR, Rapporteur: CELSO DE MELLO, Second Panel, judged on 06/22/2010, DJe-071 DIVULG 13- 04-2011 PUBLIC 14-04-2011 EMENT VOL-02503-02 PP-00299).
José Afonso da Silva, Brazilian jurist, brings freedom of expression in a broader way:
“It is that, in its internal sense, as pure conscience, as pure belief, mere opinion, freedom of thought is fully recognized, but it does not create any greater problem. Pimenta Bueno (1857, p.11) has already said that “freedom of thought in itself, while man does not manifest externally, while he does not communicate, is outside of all social power, until then it is only the domain of man himself, of his intelligence and of God” (SILVA, 2014, p. 243).
Freedom of thought is linked within the individual, where there is no accountability or possible censorship about thought without externalizing it. Conflict arises when, when expressing themselves, they automatically generate consequences and responsibilities. That said, the prohibition of anonymity in this area is indisputable, but there are foreseen exceptions, such as in situations of risk (anonymous complaints).
Afonso da Silva also comments on the prohibition of anonymity present in item IV of the Constitution, and states that the individual, when expressing their thoughts, has the duty to assume the authorship of the act, if they are liable for damages (SILVA, 2014, p. 243).
The jurist, when addressing the forms of expression, describes how the individual externalizes his thought:
“This externalization of thought can take place between present or absent interlocutors. In the first case, it can be verified through dialogue, exposition, lectures. In the second case, it can occur between certain people, through confidential personal and private correspondence, or express itself to indeterminate people, in the form of books, newspapers, magazines and other periodicals, television and radio […]” (SILVA, 2014, p. 243).
George Marmelstein’s approach is one of the most complete in relation to the historical context, detailing the relationship between freedom and democracy:
“Freedom is an essential instrument for democracy, as it allows the popular will to be formed from the confrontation of opinions, in which all citizens, from the most varied social groups, must be able to participate, speaking, listening, writing, drawing, staging, in short, collaborating in the best way they see fit” (MARMELSTEIN, 2014, p. 123).
The freedom that society has to express its opinions and wishes is what determines a democracy, with clashing opinions and due respect, inhibiting any type of censorship that interferes with the will of the people.
Marmelstein also points out the situations in which censorship can occur in the Brazilian legal system, even with the express mention of the prohibition of censorship:
“[…] This does not mean, however, that the government cannot establish restrictions on the advertising of certain products considered dangerous for the public. Art. 220, (§§2 and 3) of the Constitution of 88, expressly authorizes the limitation, through federal law, of the advertising of products, practices and services that may be harmful to health and the environment, especially tobacco, alcoholic beverages , pesticides, medicines and therapies, containing, whenever necessary, warning about the harm resulting from their use. This constitutional norm was regulated by Law n. 9,294/96 […]” (MARMELSTEIN, 2014, p. 129).https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
The approach above demonstrates an alternative measure for advertising items harmful to health or the environment, which includes warnings and reservations about consumption in the advertisement, avoiding direct influence, without causing censorship.
Érico Hack believes that freedom of expression is “a typical right of democratic States, as it allows anyone to express their thoughts, even if they are contrary to the dominant one” (HACK, 2008, p. 76). For the jurist, the function of freedom of expression is precisely to equalize the rights between the majority and the minority, that is, even if the opinion of a given individual is not relevant, he should have this right to express. Hack also comments on responsibility, determining that the expression of thought is free, with anonymity being prohibited, precisely to answer for any losses (HACK, 2008, p. 77).
Kildare Gonçalves Carvalho addresses freedom of expression together with all constitutional freedoms. For him, freedom occurs when the State has no control over others, being totally inherent to man. In addition, it also determines freedom through the concept used by the Russian-British philosopher Isaiah Berlin who classifies freedom into two concepts: positive freedom and negative freedom:
“[…] Freedom, as the core of fundamental human rights, is not just negative, that is, freedom to do what the law does not prohibit or oblige, but positive freedom, which consists in the removal of impediments (economic, social and political ) that may obstruct the self-realization of the human personality, which implies the obligation, by the State, to ensure social rights through positive benefits with a view to providing the material bases for the realization of those rights […]” (GONÇALVES CARVALHO, 2008, p.713)
The State has the duty to preserve and ensure individuals the right to express themselves freely, removing any type of censorship or restriction, in any context. Freedom of expression is not only contained in the individual to express themselves in the way they want, but rather, having the capacity and availability to fulfill their right. It is necessary to approach the concept of freedom of expression under the procedural aspect, analyzing the jurisprudence of the Federal Supreme Court, with debates about circumstances that demand an analysis of the principle.
Direct Unconstitutionality Action No. 2.404, through the vote of the rapporteur Minister Dias Toffoli, highlighted the exception to the principle of freedom of expression, as addressed on this same topic in the American Convention on Human Rights, to which Brazil is a signatory, demonstrating the need and constitutional provision for the protection of children and adolescents, allowing prior censorship of content and proper rating (BRASIL, 2017):
“[…] The author is directed against the precept that provides for an administrative sanction to the act of transmitting, via radio or television, a show outside the hours authorized by the competent body. (…) there is no doubt that both the freedom of expression of the media and the protection of children and adolescents are axioms of constitutional scope. But, in my view, the Constitution of the Republic itself outlined the rules for weighing these two values, which are sufficient to unravel this action, as we will see below. (…) As can be seen, at the precise point of protecting children and adolescents, the Federal Constitution established a mechanism capable of offering viewers of public entertainment and radio and television programs the necessary indications, information and recommendations regarding the content broadcast. This tenuous and at the same time tense point of balance adopted by the Charter of the Republic is the rating system to reconcile these two axioms, ensuring the integrity of children and adolescents without neglecting the concern with ensuring freedom of expression . (…) Thus, the classification of audiovisual products seeks to clarify, inform and indicate to parents the existence of inappropriate content for children and adolescents. This classification developed by the Union allows parents, based on the authority of the family power, to decide whether the child or adolescent can watch a certain program or not” [STF. ADI 2404, report min. Days Toffoli, P, j. 8-31-2016, DJE of 8-1-2017.]. adopted by the Charter of the Republic to reconcile these two axioms, ensuring the integrity of children and adolescents without neglecting the concern with guaranteeing freedom of expression. (…) Thus, the classification of audiovisual products seeks to clarify, inform and indicate to parents the existence of inappropriate content for children and adolescents. This classification developed by the Union allows parents, based on the authority of the family power, to decide whether the child or adolescent can watch a certain program or not” [STF. ADI 2404, report min. Days Toffoli, P, j. 8-31-2016, DJE of 8-1-2017.]. adopted by the Charter of the Republic to reconcile these two axioms, ensuring the integrity of children and adolescents without neglecting the concern with guaranteeing freedom of expression. (…) Thus, the classification of audiovisual products seeks to clarify, inform and indicate to parents the existence of inappropriate content for children and adolescents. This classification developed by the Union allows parents, based on the authority of the family power, to decide whether the child or adolescent can watch a certain program or not” [STF. ADI 2404, report min. Days Toffoli, P, j. 8-31-2016, DJE of 8-1-2017.]. the classification of audiovisual products seeks to clarify, inform and indicate to parents the existence of inappropriate content for children and adolescents. This classification developed by the Union allows parents, based on the authority of the family power, to decide whether the child or adolescent can watch a certain program or not” [STF. ADI 2404, report min. Days Toffoli, P, j. 8-31-2016, DJE of 8-1-2017.]. the classification of audiovisual products seeks to clarify, inform and indicate to parents the existence of inappropriate content for children and adolescents. This classification developed by the Union allows parents, based on the authority of the family power, to decide whether the child or adolescent can watch a certain program or not” [STF. ADI 2404, report min. Days Toffoli, P, j. 8-31-2016, DJE of 8-1-2017.].
The age classification consists of the prior censorship in which the responsible agency determines the age allowed for the exhibition, without the occurrence of suspension or interruption of the program. From this point on, it is up to those responsible to allow the child or adolescent to watch, without any intervention by the State in determining which programs will be allowed or interrupted.
Justice Roberto Barroso, in the vote cast on Complaint No. 22,328 of 2018, which had as its object the analysis of the court decision that determined the removal of journalistic material from an electronic site, with alleged affront to the judgment in ADPF 130, found that the Constitution prohibits censorship, prior license and source confidentiality (Rcl 22328, Rapporteur: ROBERTO BARROSO, First Panel, judged on 03/06/2018, ELECTRONIC PROCESS DJe-090 DIVULG 05-09-2018 PUBLIC 05-10 -2018). In his vote, he highlighted the composition of freedom of expression, with five main highlights:
“[…] (i) the essential role it plays for democracy, by ensuring a free flow of information and the formation of a robust and unrestricted public debate, essential conditions for collective decision-making and for democratic self-government; (ii) human dignity, by allowing individuals to uninhibitedly express their ideas, preferences and worldviews, as well as having access to those of other individuals, essential factors for personality development, autonomy and existential fulfillment; (iii) the search for the truth, by contributing so that ideas can only be considered bad or incorrect after being confronted with other ideas; (iv) the instrumental function in the enjoyment of other fundamental rights, such as participating in public debate, meeting, associating, and exercising political rights, among others; and, as highlighted above (v) the preservation of society’s culture and history, as it is a condition for the creation and advancement of knowledge and for the formation and preservation of a nation’s cultural heritage […]”(Rcl 22328 , Rapporteur: ROBERTO BARROSO, First Panel, judged on 03/06/2018, ELECTRONIC PROCESS DJe-090 DIVULG 05-09-2018 PUBLIC 05-10-2018).
The essential and instrumental function, human dignity, the search for truth and the preservation of the culture and history of society are the bases of freedom of expression, ensuring democracy, allowing individuals the freedom to express themselves, the possibility of exposing their opinion in various situations and, not least, in the preservation of cultural heritage.
Barroso also explained the difficulty of the Judiciary in emphasizing the right to freedom of expression, since currently decisions about the suspension/ban of news and opinions are routinely ruled out (Rcl 22328, Rapporteur: ROBERTO BARROSO, First Panel , judged on 03/06/2018, ELECTRONIC PROCESS DJe-090 DIVULG 05-09-2018 PUBLIC 05-10-2018).
It is also worth including the quote made by the Minister in his vote of the book “Course on Constitutional Law” by Minister Gilmar Ferreira Mendes and Paulo Gustavo Gonet:
“[…] Freedom of expression, as a fundamental right, has, above all, the character of claiming that the State does not exercise censorship. It is not the State that must establish which opinions deserve to be taken as valid and acceptable; this task falls, rather, to the public to whom these demonstrations are addressed. Hence the guarantee of art. 220 of the Brazilian Constitution. We are, therefore, faced with a right of a markedly defensive nature – the right to the State to abstain from conduct that interferes with the individual’s sphere of freedom. […]” (MENDES; BRANCO, 2015, p. 264-265).
Mendes and Gonet demonstrated the State’s lack of competence and capacity to interfere in what content or opinion should be published, and it is up to society to determine what is acceptable in its environment.
Finally, Barroso determined that the decision to remove journalistic material from an electronic site is censorship, encompassing censorship in situations related to the internet, in which removing a story from an electronic site is also considered censorship (Rcl 22328, Rapporteur: ROBERTO BARROSO, First Panel, judged on 03/06/2018, ELECTRONIC PROCESS DJe-090 DIVULG 05-09-2018 PUBLIC 05-10-2018).
Regarding anonymity, the vote of Minister Celso de Mello, in the Inquérito 1957/PR, judged on May 11, 2005, highlights the importance of the prohibition of anonymity, since it discourages practices that may not be held responsible precisely for anonymity ( BRAZIL, 2005):
“We know, Mr. President, that the constitutional veto of anonymity, under the terms in which it is stated (CF, art. 5, IV, “in fine”), seeks to prevent the consummation of abuses in the exercise of freedom of expression of thought and in the formulation of apocryphal denunciations, since, by requiring the identification of its author, the aim is, in the final analysis, with such a measure, to enable any excesses arising from such practice to be made liable for subsequent liability, both in the civil sphere and in the criminal sphere, in order to subject the perpetrator to the legal consequences of his behavior.
It becomes evident, therefore, Mr. President, that the clause that prohibits anonymity – by making possible, later, the criminal and/or civil liability of the offender – translates a constitutional measure aimed at discouraging abusive manifestations of thought, from which it may arise encumbrance to the moral patrimony of people unfairly disrespected in their sphere of dignity, whatever the means used in the dissemination of contumelicious charges” (Inq 1957, Rapporteur: CARLOS VELLOSO, Full Court, judged on 05/11/2005, DJ 11-11-2005 PP-00007 EMENT VOL-02213-02 PP-00205 RTJ VOL-00196-01 PP-00101).
When exercising the right, it is up to the individual to be fully aware of the entire context that he will express, obliging himself to be responsible for the acts performed, including in the virtual sphere. The Minister in the Regimental Appeal in Extraordinary Appeal No. 1,193,343 of 2019 also stated that the purpose of the constitutional veto on anonymity is to prevent possible abuses in the exercise of freedom of expression, and may hold the individual liable in the civil and criminal sphere (RE 1193343 AgR, Rapporteur: CELSO DE MELLO, Second Panel, judged on 11/29/2019, ELECTRONIC PROCESS DJe-275 DIVULG 12-11-2019 PUBLIC 12-12-2019).
Thus, it appears that freedom of expression does not have an absolute character, as there is a confrontation with other principles that may be violated, especially in relation to the inviolability of privacy and intimacy. The judgment of HC No. 8.424-RS demonstrates this character through a case involving anti-Semitism and racism (BRASIL, 2004):
“The right to free expression cannot encompass, in its scope, manifestations of immoral content that imply criminal unlawfulness. Public liberties are not unconditional, so they must be exercised in a harmonic way, observing the limits defined in the CF 5th, §2nd. The fundamental precept of freedom of expression does not enshrine the “right to incite racism”, since an individual right cannot constitute a safeguard against unlawful conduct, as happens with crimes against honor. Prevalence of the principles of human dignity and legal equality” (STF, Pleno, HC 82424-RS, report p/ac Min. Maurício Corrêa, j. 17.9.2003, mv DJU 19.3.2004, p.17)”
Freedom of expression does not allow the expression of thoughts that are considered immoral, prejudiced and incite hatred and violence. In order to exercise the right, the proportionality of what will be externalized must be taken into account, avoiding acts that lead to offense and honor to a specific individual, as well as to social groups.
The decision of the rapporteur Minister Celso de Mello, in the Prosecution of Non-Compliance with a Fundamental Precept (ADPF) No. 187, which dealt with the “Marcha da Marijuana” brought an affront between a constitutional principle and the typification of a crime (BRASIL, 2014 ):
for the most part, strange, unbearable, extravagant, audacious or unacceptable – The sense of alterity of the right to free expression and respect for ideas that conflict with the dominant thought and values in the social environment – Non-absolute character of said fundamental freedom (CF, art. 5, items IV, V and X; American Convention on Human Rights, art. 13.5)” [STF. ADPF 187, rel. min. Celso de Mello, P, j. 15-6-2011, DJE of 29-5-2014.]. Celso de Mello, P, j. 15-6-2011, DJE of 29-5-2014.]. Celso de Mello, P, j. 15-6-2011, DJE of 29-5-2014.].
What made the Marijuana March possible is the objective that the demonstration proposed, without any incitement or provocation of illegal acts, valuing the culture, an environment in which debates, lectures, seminars on the legalization of marijuana are held. Minister Carmen Lúcia Antunes Rocha also pointed out that “it is necessary to ensure the right to demonstrate on the criminalization or not of the use of marijuana, as such demonstrations can lead to changes in laws” (STF. ADPF 187, rel. min. Celso de Mello, P, j. 15-6-2011, DJE of 29-5-2014.).
1.5. Limits to freedom of expression on the internet
Freedom of expression is a fundamental constitutional right that has its limitations, which must be analyzed on a case-by-case basis, due to the complexity and safeguard in classifying certain acts as freedom of expression. To exercise this right, the individual must value ethics, being “a reflection on the notions and principles that underlie moral life” and morality, defined as “a set of rules that determine the behavior of individuals in a social group” ( ARANHA, MARTINS, 2009, p. 120-121).
Based on this assumption, the individual must respect these two rules in order to organize relationships within society and that each individual has the ability to perform any acts that may affect another directly or indirectly. The limit of the exercise of freedom of expression occurs when it goes beyond morality and ethics, exceeding the expression of its thought. These excesses are easily found in political, racist or xenophobic discourses (CABRAL; ASSUNÇÃO, 201-, online ).
Including, pursuant to art. 4 of Decree No. 65.810 of December 8, 1969, better known as the International Convention on the Elimination of All Forms of Racial Discrimination, explicitly protects against excessive exercise of freedom of expression in racial discrimination:
“Article IV. States Parties condemn all propaganda and all organizations that are inspired by ideas or theories based on the superiority of a race or a group of people of a certain color or of a certain ethical origin or that intend to justify or encourage any form of hatred and of racial discrimination and undertake to immediately adopt positive measures aimed at eliminating any incitement to such discrimination, or any acts of discrimination for this purpose in view of the principles formulated in the Universal Declaration of Human Rights and the rights expressly set out in the article 5 of this convention, they mainly undertake:
- a) to declare offenses punishable by law, any dissemination of ideas based on racial superiority or hatred, any incitement to racial discrimination, as well as any acts of violence or provocation to such acts, directed against any race or any group of people of another color or of other technical origin, as well as any assistance given to racist activities, including their financing;
- b) to declare illegal and prohibit the organizations as well as organized propaganda activities and any other type of propaganda activity that incites racial discrimination and that encourages and declares a criminal offense punishable by law to participate in these organizations or in these activities.
- c) not to allow public authorities or national or local public institutions to incite or encourage racial discrimination (BRASIL, 1969).”
The article determines a limitation on the manifestation of discriminatory thoughts, including any acts that directly and/or indirectly attack stigmatized minorities. In addition, the Covenant on Civil and Political Rights also provided that freedom of expression “may be limited with a view to “respecting the rights and reputation of third parties”, as well as “any defense of national, racial or religious hatred that constitutes incitement discrimination, hostility or violence must be prohibited by law” (SARMENTO, 2006, p. 26).
The right to express oneself freely is also embedded in the internet. As explained above, the limit of freedom of expression occurs when it affects other fundamental rights. Some criminal classifications are confused with freedom of expression. In fact, this topic is being addressed in Fake News Inquiry No. 572 (confidential), with the aim of investigating threats against the Federal Supreme Court and the Justices of the Court, emphasizing freedom of expression to identify which acts are guaranteed by principle and which are considered crimes (VALENTE, 2020, online ).
Personal personality rights are also guaranteed on the internet, such as: honor, image, privacy, reputation, etc. As in the physical world, individuals who commit crimes against honor, the image, also do it in the virtual world. Attacks against individuals, legal entities, bodies, are carried out through sharing, comments, publications and manifestations on the internet, without any impediment, using social networks (Facebook, Twitter, Instagram, WhatsApp, etc.) as a vehicle for externalizing thought.https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
Injury, slander and defamation are crimes subject to conviction and fine, not allowing the scope of the principle of freedom of expression. So to what extent is it considered just the manifestation of thought? When is it considered a crime? (LIMA, 2017, online ).
Along the concepts of freedom of expression, there were some reservations to the principle, which must be addressed to determine the limit of freedom of expression in the virtual world.
Anonymity, expressly prohibited for the proper exercise of freedom of expression, is widely used on social networks and the internet. Fake profiles are created in order to perform and practice acts in order not to be identified and, consequently, without being held responsible for it.
It is worth remembering that in recent years, several artists and digital influencers who use the internet exclusively as work are weakened by the spread of Fake News, which can result in bankruptcy and loss of credibility due to false news that, even without veracity, the fact is registered and the individual can suffer from several attacks (ESTADÃO, 2020, online ).
In addition to Fake News, expressions of thought that are considered immoral, prejudiced and incite hatred and violence are also prohibited. The social network Facebook has mechanisms that help the user to report posts and comments, such as hate speech, false news, harassment, terrorism, etc.
Going back to the facts related to digital influencers, in 2018, youtuber Júlio Cocielo was accused and prosecuted for racism due to tweets made during the World Cup, in which he stated that player Kylian Mbappé “could do some top drag on the beach, huh”, referring to the player’s ethnicity (black) and comparing him to assailants. The Public Ministry of São Paulo assessed the indemnity for social damage in the amount of BRL 7,500,000.00 (seven million reais). The process is ongoing. This case demonstrates, in addition to accountability for acts practiced on the internet, the rejection of discriminatory and racist manifestations that are contrary to society’s common sense (VEJA, 2019, online ).
The manifestations of thought on the internet are expressed in the most diverse ways: sharing, publications, tweets, comments, reactions, etc. Each social network has its own expression mechanism.
Facebook is a social network that allows users to post any type of message, share posts, react to posts by other users, post photos, videos, links, chat privately with another user, including by phone and video call. The individual’s way of expressing themselves on Facebook is comprehensive, but must observe the platform’s policies, discussed later.
The limits of freedom of expression on the internet are the same used in the physical world, where there is a popular saying that states: “your right ends where others begin”, observing the rights guaranteed by the Federal Constitution, especially those listed in the art. 5th and, exercise their rights without harming and respecting the rights of others.
CHAPTER 2 HATE SPEECH ON THE INTERNET
2.1. hate speech concept
Hate Speech, translated into Portuguese as ‘Hate Speech’ is any act that discriminates or incites discrimination, based on race, gender, ethnicity, nationality, religion, sexual orientation or any other characteristic susceptible to discrimination (CABRAL; ASSUNÇÃO, [ 201-], online ).
For the Council of Europe, hate speech can be set to
“[…] any expression that spreads, incites, promotes or justifies racial hatred, xenophobia, anti-Semitism or any other form of intolerance, including intolerance caused by aggressive nationalism and ethnocentrism, discrimination or hostilities against minorities, migrants and people of foreign origin” (BRANDÃO, 2015, online).
For Winfried Brugger (2007, p. 151), hate speech is linked to acts that “tend to insult, intimidate or harass people because of their race, color, ethnicity, nationality, sex or religion”, in addition to the ‘ability to to instigate violence, hatred or discrimination against such people”.
Samantha Meyer-Pflug (2009, p.97-98) defines hate speech as ‘the manifestation of ideas that incite racial, social or religious discrimination in certain groups, most of the time, minorities”. The Doctor of Law claims that hate speech is “a representation of a controversial profile involving freedom of expression, which can be considered an abstract apology for hate, since it summarizes contempt and discrimination against certain groups”.
Rosane Leal da Silva and Luiza Quadros da Silveira Bolzan (2012, online ) determine that:
“[…] hate speech is configured as such by exceeding the limit of the right to freedom of expression, inciting violence, disqualifying the person who does not have the same characteristics or who does not share the same ideas, and by electing the recipient as “common enemy” incites violence and its extermination, which directly hurts the value that serves as a support for the democratic rule of law, namely, the dignity of the human person[…]”.
As discussed above, hate speech for the legal world is “any speech, gesture or conduct, written or represented that is prohibited because it may incite violence or discriminatory action against a group of people or because it offends or intimidates a group of citizens. The law can typify the acts that are liable to cause a discriminatory act, such as race, gender, origin, nationality, sexual orientation or other characteristic” (FANTINI, 2014, p.108-110).
The hate speech is the manifestation of thought that incites violence against vulnerable, ie a group or individual that has characteristics that have had or have now a stereotype, coming so, prejudice, racism, discrimination and intolerance.
The European Court of Human Rights has the understanding that art. 10 of the European Convention guarantees the right to free expression, but it is not absolute, given the existence of other rights equally guaranteed by the Convention. There are several judgments that expose the understanding that
“[…]tolerance and respect for the equal dignity of all human beings constitute one of the foundations of a democratic and plural society. Therefore, as a matter of principle, it is considered necessary that certain democratic societies penalize and even prohibit all forms of expression that spread, incite, promote or justify hatred based on intolerance (including religious intolerance)” (LEITE, 2020, online ) .
In article art. 4 of Decree No. 65.810 of December 8, 1969, there is an emphasis on racial discrimination, but today it is not the only context used in hate speech. It finds itself in the same field of freedom of expression, that is, in thought. There is no way to curb any type of thinking of any individual, just making him responsible when externalizing or performing any act related to his thinking (CABRAL; ASSUNÇÃO, [201-], online ).
As we enter the concept of hate speech , we must develop some topics, such as: prejudice, racism and discrimination.
Prejudice, according to the Oxford Languages dictionary (2020, online ), “is any opinion or feeling conceived without critical examination; hostile feeling, assumed as a result of the hasty generalization of a personal experience or imposed by the environment; intolerance”.
Norberto Bobbio classifies prejudice as “a mistaken opinion, considered true by certain people. However, it warns that not every mistaken manifestation can be considered as prejudice”. Bobbio divides prejudice into two classes: prejudice about beliefs and superstitions and social prejudice, that is, prejudice against some social group, usually the minority (apud MEYER-PFLUG, 2009, p. 104).
Racism, according to the Oxford Languages dictionary (2020, online ), is “the set of theories and beliefs that establish a hierarchy between races, between ethnicities; it is the doctrine or political system founded on the right of a race (considered pure and superior) to dominate others”. For Thais Pacievitch (apud CABRAL, ASSUNÇÃO, [201-], online ), racism is “a way of discriminating people based on racial reasons, skin color or other physical or religious characteristics, in such a way that some consider themselves superior to others”.
In Brazil, racism is present in society, especially “veiled, naturalized” racism, as described by Hildeliza Lacerda Tinoco Boechat Cabral and Caroline Oliveira de Assunção: “[…] Modern racism is practiced with differentiated slavery actions such as elevators of service, the intimate rooms of employees etc. The most needy and underprivileged are still the black and poor[…]” ([201-], online ).
Finally, discrimination, according to the Oxford Languages dictionary (2020, online ), ishttps://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
“[…] the faculty of discriminating, distinguishing; discernment; action or effect of separating, segregating, setting apart; worse or unfair treatment given to someone because of personal characteristics; intolerance; an act that breaks the principle of equality, such as distinction, exclusion, restriction or preferences, motivated by race, color, sex, age, work, religious belief or political convictions[…]”.
Norberto Bobbio (apud MEYER-PFLUG, 2009, p. 109-110) determines that “discrimination is stronger than simple difference, as it is used in a pejorative sense and is based on illegitimate criteria, usually related to the idea of superiority of one group over another”.
When discussing the topic, Meyer-Pflug (2009, p.111), explains that “there is a situation of discrimination when a certain group, according to criteria adopted in that society, must receive a certain equal treatment and do not obtain it. , because a portion of society understands that they are not entitled to this treatment”. The doctor also determines that there is direct discrimination, that is, those in which it is easy to observe certain groups prevented from exercising their rights unequally, and indirect discrimination, which are those observed through “neutral” conduct, as it is characterized racism “veiled, neutralized”.
By reflecting on the concepts of prejudice, racism and discrimination, it is possible to have a broader and more specific view of hate speech and its impact by causing a mass dissemination of acts considered to be violent. In recent years, it has been possible to observe a series of hate speech publications on social networks. In May of this year, 14.3 million posts containing hate speech were deleted on Facebook, based on complaints made by the platform’s users. This significant number demonstrates society’s concern to curb this type of discourse on the social network and in everyday life (ARBULU, 2020, online ).
The Facebook platform has already shown a concern in its policies since several protests that took place in the United States of America in recent years. The NGO Stop Hate for Profit has published a manifesto declaring that Facebook has actively participated in the incitement to violence, by allowing publications that incite hatred on the social network. Thus, the NGO promoted a worldwide action for the main companies to suspend advertising campaigns on the platform. The main objective is to reduce revenues so that employees could change the policies of the social network, aiming to reduce publications and groups that practice hate speech. In addition, the companies emphasized that they also suspended due to not associating their brand with certain ones posts(ALVES, 2020, online ).
Faced with this movement, on June 26, 2020, Facebook CEO Mark Zuckerberg, through a live, stated that measures are being taken to prevent the spread of hate speech (ALVES, 2020, online ), which will be analyzed in the next few topics.
Thus, it can be considered that hate speech are intolerant acts directed at certain groups. The hate speech is considered a crime, but in the digital environment, there is still no specific regulations for the punishment to practice such acts on the Internet (Chagas, 2020, online ).
The Marco Civil da Internet (Law No. 12.965/2014) does not have any provision that regulates hate speech on the internet, however, in its article 2, it establishes freedom of expression, as well as human rights:
“Art. 2nd The discipline of internet use in Brazil is based on respect for freedom of expression, as well as:
I – the recognition of the worldwide scale of the network;
II – human rights, personality development and the exercise of citizenship in digital media; […] (BRASIL, 2014).”
Several platforms have in their use policies the scope of fundamental rights provided for in the Federal Constitution of Brazil, including Facebook itself, where we will analyze in the next topics the regulatory policies and their innovations to combat hate speech on the social network.
2.2. Classification of hate speech in the Brazilian legal system
The Federative Constitution of Brazil of 1988 establishes in its art. 3rd the fundamental objectives of the Federative Republic of Brazil:
“Art. 3rd The fundamental objectives of the Federative Republic of Brazil are:
I – build a free, fair and solidary society;
II – guarantee national development;
III – eradicate poverty and marginalization and reduce social and regional inequalities;
IV – to promote the good of all, without prejudices of origin, race, sex, color, age and any other forms of discrimination (BRASIL, 1988) (Emphasis added) ( BRAZIL, 1988).”
Highlighting item IV, which provides for the promotion of good without any prejudice or discrimination (BRASIL, 1988), the Constitution served as the basis for other legislation to promote the eradication of hate speech . In addition, art. 5 provides in its item XLI the punishment of “any discrimination against fundamental rights and freedoms” (BRASIL, 1988).
The hate speech does not have its own classification in the Brazilian legal system, which is necessary the characterization of other crimes provided for by law. One of the main typifications used for hate speech is contained in the Law against Prejudice (Law No. 7716 of 1989), which defines crimes resulting from racial or color prejudice (BRASIL, 1989). In its article 20, it typifies the practice, induction or incitement to discrimination or prejudice based on race, color, ethnicity, religion or national origin, including the manufacture, sale, distribution or placement of symbols, emblems, ornaments, badges or advertising that use the swastika or gamma cross, for the purposes of spreading Nazism:
“Art. 20. Practicing, inducing or inciting discrimination or prejudice based on race, color, ethnicity, religion or national origin.
Penalty: one to three years imprisonment and fine.
- 1º Manufacture, commercialize, distribute or transmit symbols, emblems, ornaments, badges or advertisements that use the swastika or swastika, for purposes of spreading Nazism.
Penalty: two to five years imprisonment and fine.
- 2 If any of the crimes provided for in the caput is committed through the media or publication of any kind:
Penalty: two to five years imprisonment and fine (BRASIL, 1989).”
Paragraph 2 determines the penalty related to the action produced through the media or publication of any nature, which is the typification used at the time for the purposes of hate speech on the internet (BRASIL, 1989). It is noteworthy that, in some cases, the Judiciary Branch defines such conduct as insult, slander or defamation. 
In August 2019, the deputy of the PC do B/MA, Márcio Jerry, presented Bill No. 4.785/2019, “which amends the Penal Code to provide for the criminalization of intolerance, hatred, prejudice, exclusion and violence through the Internet, electronic devices and virtual environment” (BRASIL, 2019).
The Project provides for the inclusion of the following article:
“Art. 154-C. Incurs the same penalties provided for in this Decree-Law, who, through the Internet, electronic devices and virtual environment, develop, disseminate, induce, injure or incite intolerance, hatred, prejudice, exclusion and violence, in any way, including symbolic, by reason for race, color, gender and gender identity, sexual orientation, religion, national or ethnic origin, age or disability status.
Penalty: imprisonment, from one to three years, and fine.
- 1st. The penalty is increased by one third if, under its own name or not, three or more people are associated with the purpose of committing any of the crimes provided for in this Decree-Law.
- 2nd. The penalty is increased by half if intolerance, hatred, exclusion and violence is practiced:
I – using threat;
II – abuse of authority;
III – against children under the age of eighteen;https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
IV – if practiced by a spouse or any intimate relationship of affection in which the aggressor lives or has lived, regardless of cohabitation and sexual orientation;
VI – against the image right;
VII – if the aggression results in economic loss (BRASIL, 2019)”.
The articles of the Bill of Law establish the exact description of the conducts practiced by users on the Internet, seeking direct criminalization when practicing these acts. When analyzing the Deputy’s justification (BRASIL, 2019), he cites the importance of criminalizing such conduct, in view of the intolerance, disrespect and inequality that are very present in daily life in Brazil. It also defines the practice of hate speech as “any type of speech, conduct, gesture, writing or representation, which may incite violence, offenses or actions against someone or a group of people”. This also points out that hate speech is a symbolic violence, in which it “dehumanizes” the individual and automatically makes him more vulnerable in society.
Also in justification, the main objective of the Bill is:
“[…] to provide the country with legislation to confront the discourses and practices of acts of intolerance, discrimination and hatred, carried out not only against an individual, but also against the collective of people, aiming to reach them due to their peculiar characteristics of race, gender, sexual orientation, religion or national origin, violating their emotional and physical integrity, fostering an environment of intolerance that is only sustained by ignorance” (BRASIL, 2019).
The typification of hate speechin Brazil it is still under development, mainly due to the conceptualization of the actual act performed. In a recent judgment at the Federal Supreme Court, in Action of Unconstitutionality by Omission No. 26, the Plenary upheld the “delay of the National Congress in enacting a law that criminalizes acts of homophobia and transphobia” (BRASIL, 2019). This judgment had national repercussions as they determined that the Law against Prejudice (Law No. 7716 of 1989) was applied to discriminatory acts against sexual orientation or gender identity. The STF Plenary recognized that homotransphobic practices are included in the concept of racism, citing as an example the Ellwanger case (HC No. 82.424/RS). In addition, in the judgment, they emphasized that discriminatory behaviors practiced against the LGBT group are also acts of segregation,
The collegiate, by majority, established the following thesis:
“1. Until a law issued by the National Congress, aimed at implementing the criminalization warrants defined in items XLI and XLII of art. 5 of the Constitution of the Republic, homophobic and transphobic conduct, real or supposed, that involve a hateful aversion to someone’s sexual orientation or gender identity, by translating expressions of racism, understood in its social dimension, are adjusted by identity of reason and by typical adequacy, to the primary precepts of incrimination defined in Law No. 7716, of 01.08.1989, also constituting, in the event of intentional homicide, a circumstance that qualifies it, as it constitutes a gross motive (Criminal Code, art. 121, § 2, I, “in fine”); 2. Criminal repression of the practice of homotransphobia does not reach nor restrict or limit the exercise of religious freedom, hostility or violence against people because of their sexual orientation or gender identity; 3. The concept of racism, understood in its social dimension, projects beyond strictly biological or phenotypic aspects, as it results, as a manifestation of power, from a construction of a historical-cultural nature motivated by the objective of justifying inequality and aimed at to ideological control, political domination, social subjugation and the denial of otherness, dignity and humanity of those who, because they are part of a vulnerable group (LGBTI+) and because they do not belong to the state that holds a position of hegemony in a given social structure, are considered strange and different, degraded to the condition of marginals of the legal system, exposed as a result of hateful inferiority and perverse stigmatization, to an unfair and harmful situation of exclusion from the general system for the protection of rights”. (ADO 26/DF, report. Min. Celso de Mello, judgment on 6.13.2019).
Initiatives to criminalize hate speech are intensifying. The STF itself has already established the need for the National Congress to typify such acts, in addition to the most varied Bills in the Chamber of Deputies with the same purpose.
2.3. Delete hate speech on Facebook policy and protection mechanisms
In 2016, the platforms Facebook, Google, Microsoft and Twitter reached an agreement on the European Union code of conduct, requiring them to evaluate most occurrences for the removal of hate speech within 24 hours (THE GUARDIAN, 2016, online ).
David Kaye, UN Rapporteur on freedom of expression and other human rights bodies has expressed concern about freedom of expression as the concentration of power in the hands of social media companies could lead to private sector dominance over environments for freedom of expression. The bodies highlighted the concern of the business models of these companies, concerned with an advertising environment and can be used for other purposes such as the dissemination of hate speech and Fake News (UN, 2018, online ).
The prohibition of hate speech is a mechanism to guarantee freedom of expression. This type of discourse has the objective of only silencing the expression of minorities.
Facebook has the “Community Standards” on its platform, which is a set of regulations aimed at the use of the social network by the user (FACEBOOK, [201-], online ).
From the standpoint of the Facebook platform, the definition of hate speech is determined by a “direct attack on people based on what they call protected characteristics: race, ethnicity, nationality, religious affiliation, sexual orientation, caste, sex, gender, gender identity and severe illness or disability” (FACEBOOK, [201-], online ). They define attacks as “violent or degrading speeches, statements of inferiority or encouragement of exclusion or segregation” (FACEBOOK, [201-], online ), and classify attacks into three levels of severity, described below:
“Sometimes people share content with other people’s hate speech in order to raise awareness and educate. In some cases, words or terms that could violate our standards are used in a self-referential manner or to strengthen a cause. Sometimes people express contempt in the context of a loving breakup. Other times, they use gender-exclusive language to control participation in a positive support or health group, such as a women-only breastfeeding group. In all of these cases, we will allow the content, but we expect people to clearly state their intentions, which will help us better understand why they shared that content. If the intention is not clear, we may remove the content” (FACEBOOK, ([201-], online ).
EMEA Vice President of Public Policy on Facebook Richard Allan speaks about hate speech in a global online community. Throughout the article published on the social network forum, Allan emphasizes the importance and development of the platform in combating hate speech, informing that in some countries there are laws against hate speech , so the social network must also follow the regulations of that country ( ALLAN, 2017, online ).
According to Allan, Facebook is ready to remove explicit hate speech , as in the case of “direct incitement to violence against protected characteristics, degrades or dehumanizes people, in addition to referring them to local law enforcement”, but demonstrates the difficulty of effectiveness in the contexts used by users, the ambiguity of the words and, mainly, the slang or local customs (ALLAN, 2017, online) . The Vice President brings an example that demonstrates the difficulty in removing hate speech publications (ALLAN, 2017, online ):
“What does the statement “burn flags and not queers” mean? While this is clearly a provocative statement, should it be considered hate speech? For example, is it an attack on gays or an attempt to “recover” the injury? Is it an incentive for political protest through burning flags? Or, if the speaker or audience is British, is it an effort to discourage people from smoking cigarettes (cigarette is a common British term for cigarette)? To know if it’s a hate speech violation, more context is needed.
We looked at how the use of the word was evolving and decided that our policy should remove it as hate speech when used to attack a person or group, but not in other harmless use cases. There has been a problem applying this policy correctly recently, mainly due to the challenges of understanding the context; upon closer examination, we got it right. But we hope this will be a long-term challenge” (ALLAN, 2017, online).
Allan demonstrates a concern with removing publications and notes the caution that experts must be careful not to remove ‘harmless’ publications, leading to censorship.
It is worth remembering that, in 2013, Facebook changed its internal policies after the disclosure of data associated with content that promoted domestic and sexual violence against women. Content analysis algorithms were created, detecting several occurrences of hate speech on the platform, however, there is more difficulty in more subtle situations and, thus, a warning protocol was created, where the user can report the act to Facebook and, within 24 hours, analyze the data and, if there is hate speech, immediate removal of the content (NELSON, 2013, online ).https://406dfea3cdf57ee0e2b880daa16c31ea.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
The biggest difficulty the platform encounters is that the post is often in accordance with the policies, however, the comments and shares generate an opposite direction from the original understanding, encouraging users to practice hate speech (BEN-DAVID, MATAMOROS, 2016, p. 5).
Therefore, it presented a project to combat hate speech , hiring three thousand people to the operations team, totaling seven thousand five hundred employees dedicated to the removal and control of hate speech on Facebook, valuing mainly the cultural diversity to carefully analyze the publications and observe the contexts in which a certain act was performed (ALLAN, 2017, online ).
Facebook’s director of operations, Sheryl Sandberg, stated that “the social network uses artificial intelligence to find and remove terrorist propaganda, relying on expert counterterrorism teams and reviewers around the world to keep extremist content off our platform” (IG , 2017, online ).
The social network determines that there is a procedure to check hate speech and remove it, divided into three levels:
“(1) interactions in a written or visual form that promotes violence against groups or individuals covered by the company’s hate speech policy – at this level, degrading speeches that compare people or groups to animals or sub-humans, treating them as way inferior physically or mentally, they are also susceptible to removal, as well as mockery of the concept, events or victims of hate crimes, even if no real person appears in the image;
(2) attacks aimed at diminishing or damaging the physical, mental and moral integrity of groups and individuals; expressions of contempt or their visual equivalent; expressions of disgust or its visual equivalent and name-calling to an individual or group of people who share protected characteristics; and
(3) appeals for the exclusion or segregation of an individual or group of people based on the characteristics cited in the hate speech policy, or that negatively describes or targets people through defamation (SILVA, BOTELHO-FRANCISCO, OLIVEIRA, PONTES, 2019 , p. 478).”
After this analysis, the post is forwarded to moderators for analysis. At this point, the user who performed the act is notified about the analysis performed by the social network. Afterwards, Facebook notifies you whether the analyzed content will be removed or not. For the most serious cases, the social network currently has specific moderators who analyze and notify the user who performed the act, noting that there is the possibility of forwarding the act to the competent authorities in the country (SILVA, BOTELHO-FRANCISCO, OLIVEIRA, PONTES, 2019, pp. 481-483).
In the event of a report, the reporting user can check the progress, including canceling. In this case, Facebook has a series of options if the user decides to take action, “such as blocking the violator, not following him, sending the content for analysis, breaking the friendship and sending a message to the violator asking him to remove the content” (SILVA, BOTELHO-FRANCISCO, OLIVEIRA, PONTES, 2019, p. 483).
The next step is in Cross Check (second review) to verify that the procedure is adequate. Facebook, observing the controversy in the midst of its policies, began to request feedback from users who had their posts removed to check if the criteria adopted were in accordance with the social network’s policies and if they understood the reason for the removal. Furthermore, there was an expansion of moderators to analyze the content in more than 50 languages and issue the report within 48 hours (SILVA, BOTELHO-FRANCISCO, OLIVEIRA, PONTES, 2019, p. 484).
- THE CONFLICT OF FREE SPEECH AND HATE SPEECH
3.1. Understanding of the Brazilian legal system
Rosane Leal da Silva (2011, p.8) in her article “Hate Speech in social networks”, through the quantitative research carried out to determine the number of cases involving hate speech in the Brazilian judiciary, showed that, in 2011, only 1 % of cases included the expression “hate speech” or “ hate speech”.
With the advance in the use of social networks in Brazilian society, the number of cases related to hate speech has certainly increased considerably, including when looking at the Fake News Inquiry No. 572.
Entering the Brazilian legal system, the first relevant case to assess the conflict is in the judgment of Habeas Corpus No. 82.424/RS, better known as the ‘Ellwanger Case’, in which it had a great repercussion in Brazilian jurisprudence, being the first case to analyze the content and scope of racism (HC 82424, Rapporteur: MOREIRA ALVES, Rapporteur for Judgment: MAURÍCIO CORRÊA, Full Court, judged on 09/17/2003, DJ 03-19-2004 PP -00024 EMENT VOL-02144-03 PP-00524).
Siegfried Ellwanger Castan (1928-2010) was a writer and editor who published anti-Semitic works, denying the existence of the holocaust in World War II. In several works, Ellwanger stated that there were no gas chambers in the concentration camps, only the slave labor of the Jews was used. The case had repercussions, in which there were several complaints, including through the Public Ministry of Porto Alegre and by Mopar (Popular Anti-Racist Movement, formed by the Jewish Movement, Black Movement and the Justice and Human Rights Movement) (HC 82424, Rapporteur (a): MOREIRA ALVES, Rapporteur for Judgment: MAURÍCIO CORRÊA, Full Court, judged on 09/17/2003, DJ 03-19-2004 PP-00024 EMENT VOL-02144-03 PP-00524). In the records of Criminal Proceeding No. 1397026988 – 08720, Ellwanger was sentenced to one year and nine months for the crime of art.
“Art. 20. Practicing, inducing or inciting, through the media or by publication of any nature, discrimination or prejudice based on race, religion, ethnicity or national origin. (Article included by Law No. 8,081, dated 9.21.1990) Penalty: two to five years imprisonment.
Art. 20. Practicing, inducing or inciting discrimination or prejudice based on race, color, ethnicity, religion or national origin.
- 2 If any of the crimes provided for in the caput is committed through the media or publication of any kind:
Penalty: imprisonment for two to five years and a fine” (BRASIL, 1989).
On appeal, the 3rd Chamber of the Court of Justice of Rio Grande do Sul prohibited the distribution of the books. With the lower court decision upheld, a Habeas Corpus was filed in favor of Ellwanger, which is why he went to the Supreme Court, with the argument that he did not practice racism in his books, since “Jews do not constitute a race, but a people ” (HC 82424, Rapporteur: MOREIRA ALVES, Rapporteur for Judgment: MAURÍCIO CORRÊA, Full Court, judged on 09/17/2003, DJ 03-19-2004 PP-00024 EMENT VOL-02144-03 PP-00524). The crime of racism, according to art. 5, item XLII, of the Federal Constitution, provides that “the practice of racism constitutes a non-bailable and imprescriptible crime” (BRASIL, 1988).
Samantha Meyer-Pflug (2009, p.198) recognizes the existence of hate speech in this judgment when analyzing “the concept of race and the conflict between freedom of expression, the dignity of the Jewish people and the practice of the crime of racism”. For the doctor, the legal questions involved whether racism could be characterized against the Jewish people: “Is a Jew a race or a religion? (…) is it possible to commit the crime of racism against Jews, since the historical reality of Brazil does not demonstrate any persecution of these people?”.
Regarding the questioning of freedom of expression in the trial, the STF understood that, in this case, the principle of human dignity and equality should be superimposed on freedom of expression. Therefore, the then president of the STF, Maurício Corrêa determined that the seizure and prohibition of the distribution and sale of books with anti-Semitic content would not violate the principle of freedom of expression (HC 82424, Rapporteur: MOREIRA ALVES, Rapporteur by Judgment: MAURÍCIO CORRÊA, Full Court, judged on 09/17/2003, DJ 03-19-2004 PP-00024 EMENT VOL-02144-03 PP-00524):
“[…] like any individual right, the constitutional guarantee of freedom of expression is not absolute, and may be withdrawn when it exceeds its moral and legal limits, as in the case of manifestations of immoral content that imply criminal unlawfulness. Therefore, in the specific case, the guarantee of freedom of expression was removed in the name of the principles of human dignity and legal equality. The thesis that granted the order to recognize the prescription of the punitive claim and the thesis that granted habeas corpus of office to absolve the patient for atypical behavior having expired” (HC 82424, Rapporteur: MOREIRA ALVES, Rapporteur p/ Judgment: MAURÍCIO CORRÊA, Full Court, judged on 17/09/2003, DJ 03-19-2004 PP-00024 EMENT VOL-02144-03 PP-00524).
Finally, the Plenary understood that:
“[…] the division of human beings into races results from a process with a merely political-social content. This process gives rise to racism, which, in turn, generates discrimination and segregationist prejudice. For the construction of the legal-constitutional definition of the term “racism”, the Court concluded that it is necessary, through the teleological and systemic interpretation of the Constitution, to combine historical, political and social factors and circumstances that governed its formation and application. Only in this way is it possible to obtain the real meaning and scope of the norm, which must reconcile etymological, ethnological, sociological, anthropological and biological concepts. It was asserted that discrimination against Jews, which results from the core foundation of National Socialist thought that Jews and Aryans form distinct races,
The crime of racism practiced by Ellwanger was evidenced by the simple action of editing and publishing books with anti-Semitic content, with irrefutable questions about the events of World War II and indirectly pacting with Nazi ideology, segregating the Jewish people, directly attacking the principles Constitutional Laws together with established human rights (HC 82424, Rapporteur: MOREIRA ALVES, Rapporteur for Judgment: MAURÍCIO CORRÊA, Full Court, judged on 09/17/2003, DJ 03-19-2004 PP- 00024 EMENT VOL-02144-03 PP-00524).
The Plenary highlighted the importance of the crime of racism consisting in the imprescriptibility clause so that circumstances of the past do not reverberate in the country and the Judiciary itself, as these are very well-defined concepts that are globally despised. By majority vote, the Plenary denied the order (HC 82424, Rapporteur: MOREIRA ALVES, Rapporteur for Judgment: MAURÍCIO CORRÊA, Full Court, judged on 09/17/2003, DJ 03-19-2004 PP-00024 EMENT VOL-02144-03 PP-00524).
“HABEAS-CORPUS. BOOK PUBLICATION: ANTI-SEMITISM. RACISM. IMPRESCTABLE CRIME. CONCEPT. CONSTITUTIONAL SCOPE. FREEDOM OF EXPRESSION. LIMITS. ORDER DENIAL. 1. Writing, editing, disclosing and trading books “apology of prejudiced and discriminatory ideas” against the Jewish community (Law 7716/89, article 20, in the wording given by Law 8081/90) constitutes a crime of racism subject to the clauses of non-bailability and imprescriptibility (CF, article 5, XLII). 2. Application of the principle of general statute of limitations for crimes: if Jews are not a race, it follows that there cannot be discrimination against them capable of giving rise to the constitutional exception of statute of limitations. Inconsistency of the premise. 3. Human race. Subdivision. Nonexistence. With the definition and mapping of the human genome, scientifically there are no distinctions between men, whether by skin segmentation, eye shape, height, hair or any other physical characteristics, since all qualify as human species. There are no biological differences between humans. In essence they are all the same. 4. Race and racism. The division of human beings into races results from a process with a purely political-social content. This assumption gives rise to racism, which, in turn, generates discrimination and segregationist prejudice. 5. Foundation of the core of National Socialist thought that Jews and Aryans form distinct races. The first would be an inferior, nefarious and infectious race, characteristics sufficient to justify segregation and extermination: irreconcilability with the ethical and moral standards defined in the Political Charter of Brazil and the contemporary world, under which the democratic state is built and harmonized. Stigmas that in themselves evidence the crime of racism. An attacking conception of the principles on which human society is built and organized, based on the respectability and dignity of human beings and their peaceful coexistence in the social environment. Unethical and immoral conducts and evocations that imply repulsive state action because they are covered with dense intolerability, in order to affront the infra-constitutional and constitutional order of the country. 6. Adhesion of Brazil to multilateral treaties and agreements, which vigorously reject any racial discrimination, included therein the distinctions between men by restrictions or preferences arising from race, color, creed, descent or national or ethnic origin, inspired by the alleged superiority of one people over another, examples of which are xenophobia, “negrophobia”, “Islamaphobia” and anti-Semitism. 7. The Federal Constitution of 1988 imposed on agents of crimes of this nature, due to the gravity and repulsiveness of the offense, the imprescriptibility clause, so that the repudiation and abjection of national society to its practice remains, ad perpetuam rei memoriam, verberated. 8. Racism. Coverage. Compatibility of etymological, ethnological, sociological, anthropological or biological concepts, in order to build the legal-constitutional definition of the term. Teleological and systemic interpretation of the Federal Constitution, combining historical, political and social factors and circumstances that governed its formation and application, in order to obtain the real meaning and scope of the norm. 9. Compared law. Like Brazil, the laws of countries organized under the aegis of the modern democratic rule of law also adopt in their legal order punishments for offenses that encourage and propagate racial segregation. Statements by the US Supreme Court, the House of Lords of England and the Court of Appeals of California in the United States that enshrine understanding that apply sanctions to those who violate the rules of good social coexistence with human groups that symbolize the practice of racism. 10. The edition and publication of written works conveying anti-Semitic ideas, which seek to rescue and give credibility to the racial conception defined by the Nazi regime, denying and subverting uncontroversial historical facts such as the holocaust, embodied in the alleged inferiority and disqualification of the Jewish people, they are tantamount to incitement to discrimination with a marked racist content, reinforced by the historical consequences of the acts on which they are based. 11. Explicit conduct of the agent responsible for the offense revealing manifest intent, based on the mistaken premise that Jews are not only a race, but, more than that, an atavistic and genetically minor and pernicious racial segment. 12. Discrimination that, in this case, is evident as deliberate and specifically directed at Jews, which constitutes an illicit act of practicing racism, with the serious consequences that accompany it. 13. Freedom of expression. Constitutional guarantee that is not absolute. Moral and legal limits. The right to free expression cannot encompass, in its scope, manifestations of immoral content that imply criminal unlawfulness. 14. Public liberties are not unconditional, so they must be exercised in a harmonious way, observing the limits defined in the Federal Constitution itself (CF, article 5, § 2, first part). The fundamental precept of freedom of expression does not enshrine the “right to incite racism”, since an individual right cannot constitute a safeguard against unlawful conduct, as happens with crimes against honor. Prevalence of the principles of human dignity and legal equality. 15. “There is a close link between imprescriptibility, this legal time that runs away without finding an end, and memory, an appeal of the past at the disposal of the living, the triumph of memory over forgetting”. In the democratic rule of law, the principles that guarantee the prevalence of human rights must be uncompromisingly respected. The repulsive acts of the past that allowed and encouraged hatred between equals for racial reasons of unspeakable turpitude can never be erased from the memory of peoples who claim to be fair. 16. The absence of statute of limitations in the crimes of racism is justified as a serious warning for the generations of today and tomorrow, to prevent the reinstatement of old and outdated concepts that the legal and historical conscience no longer admits. Order denied. (HC 82424, Rapporteur: MOREIRA ALVES, Rapporteur for Judgment: MAURÍCIO CORRÊA, Full Court, judged on 09/17/2003, DJ 03-19-2004 PP-00024 EMENT VOL-02144-03 PP -00524)” The repulsive acts of the past that allowed and encouraged hatred between equals for racial reasons of unspeakable turpitude can never be erased from the memory of peoples who claim to be fair. 16. The absence of statute of limitations in the crimes of racism is justified as a serious warning for the generations of today and tomorrow, to prevent the reinstatement of old and outdated concepts that the legal and historical conscience no longer admits. Order denied. (HC 82424, Rapporteur: MOREIRA ALVES, Rapporteur for Judgment: MAURÍCIO CORRÊA, Full Court, judged on 09/17/2003, DJ 03-19-2004 PP-00024 EMENT VOL-02144-03 PP -00524)” The repulsive acts of the past that allowed and encouraged hatred between equals for racial reasons of unspeakable turpitude can never be erased from the memory of peoples who claim to be fair. 16. The absence of statute of limitations in the crimes of racism is justified as a serious warning for the generations of today and tomorrow, to prevent the reinstatement of old and outdated concepts that the legal and historical conscience no longer admits. Order denied. (HC 82424, Rapporteur: MOREIRA ALVES, Rapporteur for Judgment: MAURÍCIO CORRÊA, Full Court, judged on 09/17/2003, DJ 03-19-2004 PP-00024 EMENT VOL-02144-03 PP -00524)” The absence of prescription in the crimes of racism is justified as a serious warning for the generations of today and tomorrow, to prevent the reinstatement of old and outdated concepts that the legal and historical conscience no longer admits. Order denied. (HC 82424, Rapporteur: MOREIRA ALVES, Rapporteur for Judgment: MAURÍCIO CORRÊA, Full Court, judged on 09/17/2003, DJ 03-19-2004 PP-00024 EMENT VOL-02144-03 PP -00524)” The absence of prescription in the crimes of racism is justified as a serious warning for the generations of today and tomorrow, to prevent the reinstatement of old and outdated concepts that the legal and historical conscience no longer admits. Order denied. (HC 82424, Rapporteur: MOREIRA ALVES, Rapporteur for Judgment: MAURÍCIO CORRÊA, Full Court, judged on 09/17/2003, DJ 03-19-2004 PP-00024 EMENT VOL-02144-03 PP -00524)”
Despite this case being one of the references in the Brazilian legal system, there were criticisms about the method adopted. Maria Vital da Rocha and Lidiane Moura Lopes (2016, p.1), in “The application of the “ hate speech” theory in STF decisions: a case study.” they state that the STF did not determine whether the acts practiced by Ellwanger were racism or not, as the technique of weighing values was used. “Furthermore, if the illegality of the conduct is configured, the legal system could never accept it, removing the need for consideration in the situation”.
Criminal Appeal No. 20050110767016APR demonstrates a clear case of the conflict between freedom of expression and hate speech on social media. In the present case, the defendant Marcelo Valle Silveira Mello, when using the social network Orkut, committed the crime of racism and prejudice by practicing hate speech with comments and criticisms about the quota system adopted by the University of Brasília (TJ-DF – APR: 767015720058070001 DF 0076701-57.2005.807.0001, Rapporteur: ROBERVAL CASEMIRO BELINATI, Judgment Date: 09/03/2009, 2nd Criminal Panel, Publication Date: 11/17/2009, DJ-e Page 87).
In the complaint, hate speech is explicit when uttering messages such as:
“(…) and you guys, you stay there paying pau da África, that bunch of underdeveloped monkeys, wanting to attribute value to this black ‘culture’ that only has meaningless and crude songs that do nothing more than promote sexual orgies .. pau that negro of the palms there .. bah … I’ll play real for you, you dumb monkeys, I’m not white as you are not black either … we both have race mix in this shit … now comes with this thing of quotas .. I mean that now you want to justify the color to blame us for your failure .. take it up your ass … (TJ-DF – APR: 767015720058070001 DF 0076701-57.2005.807.0001, Rapporteur: ROBERVAL CASEMIRO BELINATI, Date of Judgment: 03/09/2009, 2nd Criminal Panel, Publication Date: 11/17/2009, DJ-e Page 87)”
The first instance acquitted the defendant based on art. 386, item III of the Code of Criminal Procedure, which states that the act does not constitute a criminal offense (BRASIL, 1941). The Public Ministry filed an appeal requesting the reform of the sentence to convict the defendant. The Judge Rapporteur Roberval Casemiro Belinati amended the sentence and delivered the following judgment:
“CRIMINAL APPEAL FILED BY THE PUBLIC PROSECUTOR’S OFFICE AGAINST SENTENCE THAT ABSOLUTES THE DEFENDANT OF THE CRIME OF RACISM PRACTICED ON THE “ORKUT”, INTERNET RELATIONS SITE. ART. 20, § 2, OF LAW No. 7716/1989. PROVEN AUTHORSHIP, MATERIALITY, TYPICAL FITNESS AND SUBJECTIVE ELEMENT. SENTENCE REFORMED. CONDEMNATION IMPOSED. SEMI-IMPUTABLE DEFENDANT. DELITIVE CONTINUITY. PRIVATE LIBERTY PENALTY REPLACED BY RESTRICTIVE RIGHTS. FEATURE KNOWN AND PARTIALLY PROVIDED. 1. The defendant committed the crime of racism, prejudice against the black race, because, when criticizing the quota system adopted by the University of Brasília, he wrote in several messages that he posted on the relationship website called “Orkut”, on the world network of computers – internet, that “blacks are dumb, underdeveloped monkeys, failures, incapables, thieves, vagabonds, rogues, dirty and poor”. 2. Since the expressions are racist, of prejudice against the black race, it is not necessary to say that they would be protected by the free expression of thought, guaranteed by art. 5, item IV, of the Federal Constitution, because this does not justify the practice of any crime. 3. The defendant acted with intense intent because, in the messages he published, he reiterated the expressions offensive to the black race. 4. The fact that the defendant was considered semi-attributable by the technical report that concluded that he was able to understand the illicit nature of the fact that he practiced, not being fully capable, however, of determining himself in accordance with this understanding, it does not exempt him from punishment, but only grants him the right to have his sentence reduced from one to two thirds, as provided for in article 26, sole paragraph, of the Penal Code. 5. The defendant must answer for continued crime, in accordance with the provisions of article 71 of the Penal Code, because he disclosed the three prejudiced messages in the same context in which he criticized the quota system adopted by the educational institution. Thus, the three offensive messages do not characterize the crime of racism in the modality of material competition, provided for in article 69 of the Penal Code. 6. Appeal known and partially granted to reform the sentence and sentence the defendant to the sanctions of art. 20, § 2, of Law No. 7716/1989, combined with article 71 of the Penal Code, applying the penalty of 01 (one) year and 02 (two) months of imprisonment, in an open initial regime, and 07 (seven ) fine days, calculated at the ratio of 1/30 (one thirtieth) of the minimum wage in force at the time of the facts, the deprivation of liberty being replaced by two penalties restricting rights, to be fixed by the Court of Criminal Executions of the Federal District. (TJ-DF – APR: 767015720058070001 DF 0076701-57.2005.807.0001, Rapporteur: ROBERVAL CASEMIRO BELINATI, Judgment Date: 09/03/2009, 2nd Criminal Panel, Publication Date: 11/17/2009, DJ-e Page 87)”
The Rapporteur stressed the role of freedom of expression when he stated that “expressions of a racist nature and prejudice against the black race are not protected by the free expression of thought, because this does not justify the practice of any crime”.
Inquiry n.º 3590, on the other hand, did not have the same understanding as the Plenary, opening an important issue for this work. The Attorney General’s Office filed a complaint in 2013 against federal deputy Marco Antônio Feliciano for committing the crime provided for in article 20 of Law No. 7.716/1989. The deputy is an evangelical pastor and, in 2011, he published in his profile on the social network Twitter:
“The rottenness of homoaffective feelings leads to hatred, crime, rejection”; “Africans descend from an ancestor cursed by Noah. That’s a fact. The reason for the curse is polemics (sic). Don’t be irresponsible twitters rsss; The curse that Noe (sic) casts on his grandson, Canaan, (sic) spills over the African continent, hence hunger, pestilence, disease, ethnic wars; On the African continent rests the curse of paganism, occultism, miseries, diseases from there: Ebola, AIDS. Hunger… Etc; Possibly being the 1st. Act of homosexuality from history (sic). Noah’s curse on canaã (sic) touches his direct descendants, the Africans” (Inq 3590, Rapporteur: MARCO AURÉLIO, First Panel, judged on 08/12/2014, ELECTRONIC JUDGMENT DJe-177 DIVULG 11-09- 2014 PUBLIC 12-09-2014).”
The Plenary, in a unanimous decision, rejected the complaint as it was considered an atypical conduct. According to the understanding of the ministers in this case, there was no legal provision for the complaint, arguing that art. 20 of Law No. 7716/1989 did not contemplate discrimination against homosexuals. They also substantiated the rejection based on art. 5, item XXXIX of the Federal Constitution which provides: “there is no crime without a previous law that defines it, nor a penalty without prior co-ordination” (BRASIL, 1988):
“CRIMINAL TYPE – DISCRIMINATION OR PREJUDICE – ARTICLE 20 OF LAW No. 7,716/89 – SCOPE. The provisions of article 20 of Law No. 7,716/89 typify the crime of discrimination or prejudice considering race, color, ethnicity, religion or national origin, not reaching that resulting from sexual option. (Inq 3590, Rapporteur: MARCO AURÉLIO, First Panel, judged on 12/08/2014, ELECTRONIC JUDGMENT DJe-177 DIVULG 11-09-2014 PUBLIC 12-09-2014)”
Minister Luís Roberto Barroso, when casting his vote, highlighted the importance of a typification for crimes of hate speech:
[…] I always remember a passage from Freud, who said that behind every interdiction there is a desire, so I think these are extremely problematic manifestations from the point of view of their content. I think it is a prejudiced comment, it is a comment in bad taste and extremely unhappy. However, I also think that freedom of expression does not exist to protect only what is humanistic, what is in good taste or what is inspired. In Rosa Luxemburg’s happy phrase, freedom of expression is what protects our adversaries, it is what protects those who think differently from us.So, in terms of ideas, I would say that the discrediting of the proposition under discussion here goes beyond all limits of error, but, in my opinion, it does not enter the sphere of crime. Even because, as Your Excellency noted, Minister Marco Aurélio, the typification of art. 20 of Law No. 7716, since its summary, defines crimes resulting from racial or color prejudice, and then, art. 20, in a strict typification as proper, also refers to race, color, ethnicity, religion or national origin.I would even consider it reasonable for the Principle of the Dignity of the Human Person to impose a command on the legislator to typify behaviors that involve expressions of hatred, hate speech, as noted by Dr. Deborah Duprat. But the truth is that this law does not exist.There is even a bill under discussion in the National Congress. So I think it would violate principles that we consider important if the Supreme Court’s own jurisprudence criminally punished someone without a law clearly defining such conduct as unlawful. So, however reprehensible this manifestation is considered to be on the moral plane, I think it is not possible to criminally typify it, so I am following Your Excellency for not receiving the complaint (Our emphasis) (Inq 3590, Rapporteur ): MARCO AURÉLIO, First Panel, judged on 12/08/2014, ELECTRONIC JUDGMENT DJe-177 DIVULG 11-09-2014 PUBLIC 12-09-2014)”
Fortunately, as discussed earlier when conceptualizing hate speech , the STF Plenary recently reformed this understanding, including the concept of racism also for homotransphobic practices.
When analyzing the evolution of jurisprudential understandings, it should be noted that decisions are increasingly homogeneous. The STF seeks to adapt to society’s ideals, as, in this 21st century, the struggle for equality is increasingly intense. Groups considered in the minority until the last century are gradually conquering their rights and guarantees, in addition to their presence and, proportionally, hate speech is increasingly inserted in society due to the intolerance also ingrained in Brazilian society. The Judiciary points out the need to criminalize such conduct, attributing to the Legislative Power the duty and progress in this regard.
The philosophical aspect was extremely necessary to study the principle of freedom of expression, as philosophy presents the emergence and evolution of freedom and, with this, the constitutional principle is understood in a more comprehensive way, and it can be interpreted in various ways, assisting in the regulation of various constitutions and regulations. Thus, freedom became a fundamental right from the fight for rights considered minimum for society, with freedom of expression being part of the list.
The study demonstrated that the analysis of the principle on the internet is broad. Considered a fundamental right, freedom of expression is essential, inalienable, unavailable, but it is not absolute. For democratic regimes, it is essential to ensure the right to this principle and, given this, it denotes the importance of application on the internet and social networks, as there is a great influence and use not only for leisure purposes, but today it is used for the most diverse fields of communication.
The hate speech is speech that is incitement to hatred, violence, discrimination, prejudice, intolerance. However, it was concluded that in Brazil there is still no specific typification of hate speech , where actions involving this type of act are typified in accordance with article 20 of Law No. 7716 of 1989, known as the Law against Prejudice, with imprisonment for two to five years, in addition to a fine (BRASIL, 1989).
The definition and typification of hate speech was also important to develop the existing conflict between freedom of expression and hate speech, as the excess of exercising the right is in overcoming morality and ethics, generally found in discriminatory, xenophobic, etc. speeches ( CABRAL; ASUNÇÃO, 201-, online ).
In the virtual world, the fight against hate speech is widespread in the policies imposed by the platforms. Facebook has several measures to inhibit the acts of hate speech . Currently, the user can file a complaint about the post or comment, which is sent to a group of moderators for analysis within 24 hours and if hate speech is confirmed , the content is removed. In addition, the user who has had his post removed receives a notification with the notice of the practice and requests feedback to see if they understand the reason for the removal. A process that requires caution, as the censorship can be quickly viewed by the user if an analysis error occurs.