First of all, it is certain that the Internet is a revolution in the means of communication: it has reduced borders and changed the acquisition and construction of content. However, as great as its impact on technology has been, so too has the immensity of the issue: how far does freedom of expression extend on the internet?
Therefore, we will address here freedom of expression on the internet, its relationship with personality rights, and the trend in case law regarding this conflict.
How important is freedom of expression?
Above all, freedom of expression is a particularly fundamental right, as its protection is vital to the dignity of the individual and to the democratic structure of our country.
Similarly, the Constitution provides for freedom of expression in Article 5:
Article 5. All are equal before the law, without distinction of any kind, guaranteeing to Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property, under the following terms:
IV – Freedom of expression is guaranteed, anonymity being prohibited;
VIII – no one shall be deprived of rights on account of religious belief or philosophical or political conviction, unless they invoke them to evade a legal obligation imposed on all and refuse to perform an alternative service established by law;
IX – Freedom of expression of intellectual, artistic, scientific and communicative activity is guaranteed, regardless of censorship or licensing.
However, no guarantee is absolute, therefore it can be restricted when it conflicts with another constitutional value or principles.
At this point, it should be emphasized that factors necessary for the moral integrity of other people and even for collective security can be legally invoked to limit the right to freedom of expression.
Therefore, it is important to revisit personality rights.
Personality Rights: What are they and why are they important?
In short, they are the inherent rights of the human person and their social relations. These personal prerogatives inherent to human beings are so important that they are protected by doctrine and jurisprudence as inalienable and non-transferable rights.
These personality rights are also defined by the legal scholar Alberto Bittar as:
"The rights recognized to the human person, considered in themselves and in their projections in society, provided for in the legal system precisely for the defense of values inherent in man, such as life, physical integrity, privacy, secrecy, respect, honor, intellect, and many others."
Pay close attention here, as it is closely related to our topic. After all, the constitutional guarantee of protection of privacy, private life, honor, image, and other elements inherent to personality carries considerable weight in the legal system.
Similarly to the constitutional provision, Article 12 of the Universal Declaration of Human Rights also states that:
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks” (UNESCO, 1948).
Therefore, it is clear that the right to freedom of expression, when it clashes with the sphere of another person's privacy, that is, personality rights, does indeed constitute a significant act.
In this case, we will then analyze how personality rights relate to freedom of expression.
Is the right to freedom of expression absolute?
Firstly, the right to freedom of expression is not absolute . However, we have witnessed the tremendous growth and expansion of the Internet, and we also find many expressions of opinion and exchanges of information that incite violence, intolerance, and abuse of power.
So, what becomes of freedom of expression on the internet in this scenario?
Certainly, when we talk about freedom of expression on the Internet, we find other rights that must be considered: the right to life, to privacy, to equality, to security, to property—that is, personality rights, as discussed previously.
Thus, the infamous freedom of expression that offends another citizen can be contained and repressed, because, as seen, freedom of expression is not an absolute right, especially when it becomes a terrible threat to personality rights.
In short, it is also important to note that when a conflict of basic rights occurs, the weight of these rights serves as a driving force for balance within the legal system , seeking a balancing process based on the value-laden nature of the right in the case.
Therefore, freedom of expression can be restricted and cannot be exercised abusively to harm the rights of others.
Furthermore, let's look at case law on this topic:
APPEAL ON INTERLOCUTORY INJUNCTION. CONSTITUTIONAL LAW. CIVIL LAW. REMOVAL OF PUBLICATION FROM THE WORLD WIDE WEB (INTERNET). DISSEMINATION OF IMAGES AND TEXTS WITH AGGRESSIVE AND DISRESPECTFUL EXPRESSIONS. BALANCING. FUNDAMENTAL RIGHT TO FREEDOM OF EXPRESSION VS. FUNDAMENTAL RIGHT TO PRIVACY. PREVALENCE OF THE LATTER. POSSIBILITY. ABSENCE OF PUBLIC INTEREST. ABUSE OF RIGHT. VIOLATION OF PERSONALITY RIGHTS. APPEAL GRANTED.
1. The legitimate scope of the fundamental right to freedom of expression (Article 5, item IX, of the Federal Constitution) must be weighed against the constitutional guarantee of protection of privacy, private life, honor, image of the person (Article 5, item X, of the Federal Constitution) and other elements inherent to personality.
2. A publication that disseminates text written in a way that infringes upon another person's privacy constitutes an abuse of the right to freedom of expression . In this particular case, the fundamental right to privacy deserves precedence over freedom of expression . 3. Appeal granted.
(TJ-DF 07168381520178070000 DF 0716838-15.2017.8.07.0000, Rapporteur: ALVARO CIARLINI, Judgment Date: 04/11/2018, 3rd Civil Chamber, Publication Date: Published in the DJE: 04/23/2018. Page: No Page Registered.)
Final thoughts on freedom of expression on the internet.
First and foremost, it should be emphasized that freedom of expression is a particularly fundamental right, as its protection is essential for the dignity of the individual and for the democratic structure of our country.
Secondly, it is important to understand that when discussing freedom of expression on the internet, constitutional guarantees of privacy, private life, honor, and the image of the human person are certainly intertwined.
Therefore, since the right to freedom of expression is not absolute, it can be restricted when it infringes upon the fundamental rights of another citizen, as case law also demonstrates.
It is therefore essential that anyone who truly understands what the law stipulates regarding freedom of expression act as a watchdog in ensuring the peaceful coexistence between the right to freedom of expression on the internet and respect for the guarantees of individual rights.
Legal arguments that may be useful in your petition.
- Federal Constitution, Article 5, item X:
Article 5. All are equal before the law, without distinction of any kind, guaranteeing to Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property, under the following terms: (...)
X – The intimacy, private life, honor, and image of individuals are inviolable, and the right to compensation for material or moral damages resulting from their violation is guaranteed.
- Civil Code, art. 186:
Article 186. Anyone who, through voluntary action or omission, negligence or recklessness, violates a right and causes harm to another, even if exclusively moral, commits an unlawful act.
- Jurisprudence:
Summary 37 of the Superior Court of Justice: "Moral damages predominantly encompass ideal values, not only the physical pain that usually accompanies them, nor are they invalidated when patrimonial damages occur simultaneously, which may even be a consequence, such that the two modalities accumulate and have autonomous incidences."
APPEAL. CIVIL LAW. ACTION FOR SPECIFIC PERFORMANCE COMBINED WITH COMPENSATION FOR MORAL DAMAGES. IMAGE MADE AVAILABLE IN A VIDEO PUBLISHED ON THE FACEBOOK SOCIAL NETWORK, WITH A CLEAR EROTIC CONNOTATION. DEFENDANT WHO, AFTER BEING NOTIFIED, FAILS TO DELETE THE CONTENT (ART. 21 OF LAW NO. 12965/14). VIOLATION OF THE RIGHT TO ONE'S IMAGE, WITH LEGAL PROTECTION (ART. 20, CAPUT, OF THE CIVIL CODE) AND CONSTITUTIONAL PROTECTION (ART. 5, X OF THE FEDERAL CONSTITUTION OF 88). MORAL DAMAGE EVIDENCED. (…) A social network administrator who, notified of the publication of content with scenes of nudity or private sexual acts without authorization, still fails to block or delete the material, violates a personality right, consequently committing an unlawful act subject to financial compensation. (…)(TJ-SC – RI: 03211083020158240038 Joinville 0321108-30.2015.8.24.0038, Rapporteur: Luís Paulo Dal Pont Lodetti, Judgment Date: 04/10/2019, Fifth Appeals Panel – Joinville)
APPEAL ON INTERLOCUTORY INJUNCTION. CONSTITUTIONAL LAW. CIVIL LAW. REMOVAL OF PUBLICATION FROM THE WORLD WIDE WEB (INTERNET). DISSEMINATION OF IMAGES AND TEXTS WITH AGGRESSIVE AND DISRESPECTFUL EXPRESSIONS. BALANCING. FUNDAMENTAL RIGHT TO FREEDOM OF EXPRESSION VS. FUNDAMENTAL RIGHT TO PRIVACY. PREVALENCE OF THE LATTER. POSSIBILITY. ABSENCE OF PUBLIC INTEREST. ABUSE OF RIGHT. VIOLATION OF PERSONALITY RIGHTS. APPEAL GRANTED. 1. The legitimate scope of the fundamental right to freedom of expression (Article 5, item IX, of the Federal Constitution) must be weighed against the constitutional guarantee of protection of privacy, private life, honor, image of the person (Article 5, item X, of the Federal Constitution) and other elements inherent to personality. 2. A publication that conveys text written in a way that affects the privacy of another person constitutes an abuse of the right to freedom of expression. In this particular case, the fundamental right to privacy deserves precedence over freedom of expression. 3. Appeal granted. (TJ-DF 07168381520178070000 DF 0716838-15.2017.8.07.0000, Rapporteur: ALVARO CIARLINI, Judgment Date: 04/11/2018, 3rd Civil Chamber, Publication Date: Published in the DJE: 04/23/2018. Page: No Page Registered.)
- Doctrine:
Just as a man has a right to the integrity of his body and his economic patrimony, he also has a right to the integrity of his self-esteem (awareness of his own moral and social value, or of his own dignity or decorum) and his moral patrimony.” (CAHALI, Yussef Said. Moral Damage. 2nd ed. São Paulo: Revista dos Tribunais, 1998, p. 288).
