Parâmetros regulatórios e autorregulatórios do discurso de ódio nas redes sociais online no Brasil, na Alemanha e na França : um estudo à luz do direito fundamental à liberdade de expressão numa democracia

Abstract

As new forms of communication have developed, especially through online social media platforms, we are faced with a resurgence of adverse communication phenomena, among which is the so-called hate speech. To investigate the regulatory frameworks of this phenomenon on such platforms in Brazil, Germany, and France, we present two hypotheses related to two research problems. As to the first problem, the aim is to analyze how the issues related to hate speech and the scope of protection of freedom of speech in a Democracy are addressed. Thus, it is proposed as a first hypothesis that hate speech is excluded from the scope of protection of this right and its prohibition is compatible with Democracy. Regarding the second problem, we propose to analyze how the German and French legislations provide standards for legislative changes in Brazil regarding the topic, in the scenario of the most used social networks in the country. Thus, we propose as a second hypothesis that the German and French legislations, even if they are not irreproachable from the constitutional point of view, they provide important elements for the debate on content moderation involving hate speech, that cannot be dissociated from the analysis of the platforms' self-regulatory experiences. For this purpose, the research followed the hypothetical-deductive method of approach, besides the adoption of the comparative method of procedure and the systematic-teleological method of interpretation. In addition to the critical analysis of doctrine, legislation, and jurisprudence, we also adopt data capture on content moderation on social networks as a research technique. As for the results, the first hypothesis is only partially confirmed, since the expression ‘hate speech’ presents itself as a broad concept that can be observed under certain parameters, besides having an intrinsic dimension of degree. It is only possible to affirm that certain conduct classified as hate speech is excluded from the scope of protection of freedom of expression as from the implementation and selection of the legislator or the constitutional legislator, beyond the jurisdictional practice. Still, an interdiction of hate speech in a Democracy is possible to the extent that certain manifestations aim at the annihilation of Democracy itself or the silencing of certain particularly vulnerable individuals or groups, before a communicative imbalance. The second hypothesis, in turn, is fully confirmed, since it is possible to build, based on the Brazilian, German, and French legislations, a suitable scenario to discuss a better way to moderate online content regarding hate speech. However, national legislations cannot be analyzed individually since the internal rules of the platforms play an important role in moderating this type of content. From the analysis of WhatsApp, Facebook, YouTube, Instagram, Twitter, Snapchat, LinkedIn, Tumblr, it is possible to notice transparency gaps and the possibility of arbitrary decisions that restrict the users’ freedom of expression. Restrictions on freedom of speech can be used to combat hate speech, as long as they are justified on the constitutional framework, to which both legislation and the internal rules of social networks are subordinated. Thus, Democracy is not only concretized in the objective dimension of freedom of expression, but also in an implicit constitutional authorization to legitimize eventual restrictions to this fundamental right. In fact, it is essential that the restriction established herein – whether by state actors or platforms – is not conducted in an excessive or disproportionate manner to the point that Democracy itself is violated.