Liberdade de expressão e moderação de conteúdo nas redes sociais

Abstract

Freedom of speech is one of the foundations of the Rule of Law. However, the exercise of this constitutional right has been profoundly affected by the emergence and popularization of social media within the so-called Web 2.0, the second phase of the internet, whose main characteristic is its focus on user-generated content. This dissertation seeks not only to describe these changes but also to contribute to the search for appropriate legal answers to the challenges posed by this new context. In the first chapter, the main arguments developed by political philosophy to justify the importance of freedom of speech are retraced. Additionally, a set of decisions issued by the Supreme Court of the United States throughout the 20th century is analyzed, culminating in the recognition that freedom of speech occupies a preferential position over other constitutional rights. In the second chapter, the contours of freedom of speech within the Brazilian constitutional framework are defined, examining both its scope of protection and its restrictions. Subsequently, key rulings by the Supremo Tribunal Federal are analyzed, revealing that the preferential position doctrine has been adopted in a mitigated form in Brazil. In the final chapter, it is observed that the cases addressed by these courts dealt with issues typical of a model of freedom of speech that predates the emergence of the internet. As a result, many of the solutions developed for those specific problems are not directly applicable to contemporary dilemmas. The changes brought about by the advent of Web 2.0 and social media in the infrastructure of freedom of speech are then described. This infrastructure refers to the types of media available at a given time for the creation and dissemination of content. Currently, the most relevant social, political, and cultural debates take place within social media platforms, allowing any individual to participate in these discussions. These platforms, in turn, play a central role as control points on the internet, relying on various mechanisms of private governance—most notably content moderation, which is based on rules unilaterally developed and applied with little transparency, significantly affecting the exercise of freedom of speech. Against this backdrop, the theoretical framework of digital constitutionalism is examined, as it seeks to establish and uphold a legal framework for protecting constitutional rights and ensuring a balance of power in cyberspace. To achieve this goal, this study proposes a regulated self-regulation model, based on a reform of the Marco Civil da Internet, structured around two key pillars: transparency and due process of law. For transparency to be meaningful, it must include the provision of individualized information to users affected by specific decisions, as well as the periodic disclosure of statistical data. On the other hand, due process must be ensured through the implementation of procedural safeguards that allow affected users not only to understand the measures taken and their underlying rationale but also to access mechanisms for review. Finally, even in the absence of specific legal provisions, it is argued that the proportionality of restrictions on freedom of speech imposed through content moderation can be assessed, in specific cases, by the Judiciary.