Civil Rights Framework or Demarcation of Rights? Democracy, Reasonableness, and the Cracks on the Brazilian Internet

Author: Marcelo Thompson

In: Journal of Administrative Law, 2012, v. 261.

Abstract: The so-called ‘Civil Rights Framework for the Internet in Brazil’ (Bill n. 2126 / 2011) lays down, for the Brazilian Internet, a regime of protection of freedom of expression that is founded on the dynamics of the First Amendment to the United States’ Constitution. It places freedom of expression in a position of superiority in relation to other personality rights. This article discusses the situations of collision between freedom of expression and other personality rights, in particular the right to reputation, as a paradigm of the constitutional thinking behind the Civil Framework. In doing so, the article questions whether the Civil Framework is compatible with recent decisions of the Brazilian Supreme Court on freedom of expression, and it compares the dynamics of civil liability established by the Civil Framework with that in force in the European Union, in general, and the United Kingdom, in particular (for reasons the article identifies).[Collisions between freedom of expression and the right to reputation are, in general, ‘hard cases’, and thus a particular focus on them is a good candidate for generalization. This article claims that the Civil Framework, in implicitly separating personality rights in distinct groups, and, in fact, in neutralizing rights such as as reputation, private life and children’s rights, creates unreasonable demarcations which are also incompatible with the democratic possibilities of contemporary societies. The article suggests a concrete solution to such a problem.

View full article in SSRN (article written in Portuguese).