Right to privacy and the Brazilian electoral process: a systemic sociological perspective on the legal regulation of the dissemination of fake news from the majority elections in 2018 onwards

• Grant number: 19/22197-7
• Support Opportunities: Regular Research Grants
• Start date: April 01, 2020
• End date: June 30, 2021
• Field of knowledge: Applied Social Sciences - Law - Theory of Law
• Principal Investigator: Celso Fernandes Campilongo
• Grantee: Celso Fernandes Campilongo
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil
• Associated researchers: Diana Tognini Saba ; Lucas Fucci Amato ; Marco Antonio Loschiavo Leme de Barros ; Paula Pedigoni Ponce

Abstract

This project investigates how Brazilian law regulates the social phenomenon of the dissemination of fake news in the electoral process, under the light of the fundamental right to privacy, considering the emergence of new communication technologies and their repercussions on the systems of media, politics and law. The unfolding of the majority elections in 2018 in the country is admitted as a time frame and social systems theory is adopted as the main reference. The research hypothesis is that the legal system has difficulties in processing demands related to the control of false notifications in the electoral sphere, because, at the same time, (1) are still poorly programmed by political and bureaucratic instances (legislation and regulation), (2) are highly based on cognitive expectations (expertise regarding the new means of information dissemination), (3) have multiple systemic interferences (especially in politics, media and economics) and (4) have cross-border character (global private technologies). The normative expectation of the right to privacy - limited to the protection of personal data -, supported as a human right and fundamental right, is currently a focus of these difficulties, as evidenced in the electoral process. In order to do so, the main normative instruments to combat the dissemination of false news existing in the legal system will be investigated, as well as the legislative proposals in progress and by non-governmental bodies. Next, the research will observe how this legal framework is being awarded through the examination of decisions of the Superior Electoral Court, the control of false news, in the majority elections of 2018, especially considering also the beacons brought by the Supreme Federal Court itself (ADI 4451/DF, Rel. Min. Alexandre de Moraes, judged on 20 and 21/06/2018) and recent judgments of the Superior Electoral Court. Finally, it is intended to contrast this material with international and transnational proposals to regulate the issue of personal data protection, which will allow the evaluation of the changes observed after the 2018 elections. The objective is to present an evaluation of the articulation of the right to privacy and the Brazilian electoral process in light of the new social phenomenon of dissemination of fake news. (AU)