O problema da regulação de conteúdo nos casos de cyberbullyng e a vinculação das plataformas de mídias sociais aos direitos fundamentais da criança e do adolescente

Abstract

This study aims to analyze the phenomenon of cyberbullying, wondering "how" and "to what extent" are social media platforms linked to the fundamental rights of children and adolescents, and also whether they have duties of protection arising from these fundamental rights. Starting from the recognition of the prima facie direct effectiveness of fundamental rights in private relationships, it will be argued that social media platforms are bound to the fundamental rights of children and adolescents, and should guarantee them to the maximum extent possible. This statement results in the existence of duties of protection arising from these rights. However, the role of the State will be highlighted as the direct addressee of these fundamental rights, which must be protected with absolute priority. The recognition that platforms are also bound to such rights will open the theoretical path to the affirmation of a joint duty of protection, however, the duty of state protection will be more accentuated. As an example, some instruments on moderation of offensive or abusive content presented by Facebook and Instagram will be explained, in order to elucidate the self-regulatory conduct undertaken by the platforms. Among the regulatory models available, it will be argued that the regulated self-regulation is the most appropriate model to address cyberbullying, in order to realize the fundamental rights of children and adolescents in the context of social media platforms. To this end, a reading will be made from the protective structure of children and adolescents in the media present in the German scenario, taking it as a model of regulated self-regulation to be adapted to the Brazilian case. The pressing need to establish instruments for the prevention of cyberbullying based on education aimed at the digital context will be sustained, and a legislative proposal for the adequate confrontation of cyberbullying in the national scenario must be reflected upon, based on a structure of regulated self-regulation.