LIMITES E IMPLICAÇÕES JURIDICAS ENTRE A LIBERDADE DE EXPRESSÃO E AS FAKE NEWS NA SEARA ELEITORAL: uma análise da legislação e jurisprudência brasileiras

Abstract

The present work has the general research objective of investigating the extent to which Brazilian legislation and jurisprudence are sufficient to resolve the tension between freedom of expression and the spread of fake news in the electoral field. The inductive method was used, enabling an upward connection from specific situations to reach a more general conclusion, at the same time that we worked on a socio-legal-critical perspective within the scope of the research, through the legal descriptive procedure, using as a technique research, documentary and bibliographic sources, notably laws, jurisprudence, resolutions, ordinances, books, scientific articles and thesis. The sustained hypothesis, whose results were confirmed at the end of the research, is that the Brazilian legal system signals the imposition of regulation of social networks, through law, as a way of establishing limits to freedom of expression and minimizing the effects of fake news in public opinion and thereby guaranteeing the fairness of the electoral process as a legitimate expression of the popular will. The time lapse is limited from the 2018 election year to the present day and the legislative section includes the laws that cover the issue of fake news in the country, in addition to the Marco Civil da Internet, while the jurisprudential section is linked to the judgments of the Federal Supreme Court (STF), in addition to the resolutions of the Superior Electoral Court (TSE). The research has Robert Alexy as a theoretical reference based on his constructions about fundamental rights and here, in particular, freedom of expression, while in relation to the secondary theme regarding social networks and fake news, we carried out a literature review seeking references to more current authors and works. The importance of this scientific research lies in the fact that it recognizes that misinformation, fake news hateful and anti-democratic speech, greatly compromise the fairness of the democratic process, vitiating the electoral election and the popular will, at the same time that we confirm a true paradigm shift, brought about by the digital revolution.