restrictions on freedom of expression require legal basis

The risk to democracy generated by the circulation of fake news on the internet should not lead judges to restrict freedom of expression without clear, precise and determined legal concepts. Without this, the contamination of the law with vague concepts typical of political and ideological struggle – such as “fake news”, “disinformation” and “hate speech” – can create an “inquisitorial, emotional, hysterical and irrational environment of censorship, stigmatization and persecution of messages and messengers considered politically and ideologically inconvenient”.

This is the warning from professor and director of the Faculty of Law at the University of Coimbra, Jónatas Machado, an internationally recognized jurist and author of a treatise on freedom of expression that is a reference in this field. He will be in Brasília on the 27th and 28th of September to participate in the conference “Freedom of Expression: the essential debate”, held by People’s Gazette to discuss recent decisions by higher courts in Brazil that have reoriented the traditional jurisprudence protecting this fundamental right.

Jónatas Machado understands that truth is an essential value for the democratic regime and that falsehoods compromise trust in social life and decision-making by citizens. One of the purposes of freedom of expression, after all, is the search for truth, even if the process to achieve it, in relation to the facts, is not subject to difficulties.

It is precisely for this reason that open and uninhibited debate contributes to describing, as far as possible, the shared reality within society. Jónatas Machado rejects the predominant idea in postmodern philosophy that truth is relative.

“The search for truth, understood as the conformity between the manifestation of a given proposition and the reality of political, economic, social and material facts, constitutes a structuring motive of any democratic society, which materializes through the proclamation and implementation of the freedoms of society. communication, which thus has, as one of the most preponderant directions, the dialogical and critical purification of the sphere of public debate, removing less suitable ideas or ideas based on falsehoods”, wrote the professor, in an article published in 2019, with the lawyer Portuguese Iolanda Rodrigues de Brito, in the Bulletin of the Faculty of Law of Coimbra.

Thus, freedom of expression, for him, does not protect deliberately misleading speeches, especially when they affect the reputation and image of people, companies or institutions, which also enjoy the fundamental right to honor. Regardless, false information harms the market of ideas, the discussion of issues of public interest and the search for truth itself. Still, restrictions on freedom of expression “should be limited to extreme, deliberate and systematic cases of disinformation, duly proven, that represent a clear and imminent danger to the democratic system”.

Below, the full interview, given by the professor via email, previews some of the issues he will discuss at the congress in Brasília.

Last year, the Superior Electoral Court in Brazil became more rigorous in controlling electoral campaign advertisements, suspending the broadcast, on social networks and on radio and TV stations, of audiovisual pieces whose content was considered “known to be untrue” or “severely decontextualized”.

It is known that one of the most important purposes of freedom of expression, in a democratic regime, is to allow citizens to choose their representatives and rulers freely and in a well-informed manner. How can excessive judicial protection over political speech in electoral disputes compromise this purpose?

In a constitutional order dominated by democratic principles and the rule of law, political, legislative, administrative and judicial institutions can only exist, subsist and function through a prior and fundamental commitment to the truth. The formation of public opinion and political will must be based on this. Hence, those principles can be used to justify restrictions on freedom of expression aimed at combating systematic disinformation practices.

However, these restrictions must have a legal basis, be exceptional, be duly substantiated, respect the principle of proportionality and be interpreted restrictively. Furthermore, such restrictions cannot ignore that reasonable people may have different opinions because they take different facts into consideration or because they interpret them differently, without this meaning that they are disseminating ideas that are “known to be untrue” or “severely out of context”.

Furthermore, in a very polarized and politicized environment, it is not easy to determine objectively and impartially when a statement is wrong or out of context. Restrictions on freedom of expression must be limited to extreme, deliberate and systematic cases of disinformation, duly proven, that represent a clear and imminent danger to the democratic system. Freedom must be the rule, and restriction must be the exception. In dubio, pro libertate.

In his opinion, in Europe, the United States and Brazil, there is still a lack of a better definition of concepts such as “fake news”, “disinformation” and “hate speech”, when judges and legislators are faced with the task of judging and banning content in the debate. political?

Today there is a contamination of constitutional and criminal law by non-legal concepts, with vague and indeterminate content, which are nothing more than concepts of political and ideological struggle. They aim to create an inquisitorial, emotional, hysterical and irrational environment of censorship, stigmatization and persecution of messages and messengers considered politically and ideologically inconvenient. They prevent calm and rational discussion.

This state of affairs is clearly unconstitutional, as it creates a gray area of ​​legal uncertainty about what can and cannot be said and prevents the free discussion of all matters of public interest, impoverishing the sphere of public discourse and creating situations of fear and self-censorship.

Restrictions must be based on sufficiently clear, precise and determined legal concepts (for example, incitement to hatred and violence), implemented by uniform, consistent and consensual jurisprudence, impervious to politicized and selective use, jurisprudence that is likely to be applied equally to individuals and entities from all political and ideological backgrounds. Otherwise, it will be a total discredit to political institutions and the judiciary.

Digital communication has considerably increased the exposure of politicians and authorities to criticism from citizens, much of which is uncomfortable, inconvenient, rude, controversial and even mistaken in terms of factual accuracy. In such an environment, does it become more difficult for authorities to resist the temptation to censor or at least try to inhibit speeches that they presume threaten their prestige, legitimacy and power? When these criticisms are directed at members of the Judiciary itself, with the power to judge whether or not these manifestations remain on the internet, does the preservation of freedom of expression require greater commitment from judges to the principles that support it?

In a free and democratic constitutional order, everyone is subject to criticism, including judges, for their conduct and the content of their decisions. But this criticism must comply with a general standard of truth, rigor and objectivity, even allowing for some deviations caused by enthusiasm, emotion or indignation.

Everything must be evaluated contextually, taking into account all relevant facts and circumstances. But democratic institutions will find it difficult to resist orchestrated and systematic campaigns, with more or less sinister political agendas, oriented towards insult, defamation and slander, directed against them and their holders. Social media has created a completely new discursive context, the dangers of which for democracy are still little known and must be followed by all citizens and all of civil society with the utmost attention.