Uma proposta de modelo de responsabilidade ulterior ao dano da liberdade de imprensa na democracia brasileira

Abstract

This thesis intends to critically analyze how press freedom is approached in the Brazilian legal system, based on the study of the insufficiency of the responsibility model after the harm to the communication channels proposed in ADPF n. 130/2009, judged by the Federal Supreme Court, due to this conception that any law to regulate the media activity automatically implies in the risk of prior censorship. Thus, the thesis starts from the consideration that the absence of law in Brazilian legal is detrimental to the rights of civil personality for the citizen, as well as being unfavorable to the media, because it promotes legal uncertainty without instituting what are the normative definitions for the broadly-broadcast sectors of news that become more exposed to receiving convictions in the Judiciary. In this context, the model of ulterior responsibility for harm of the Inter-American Court of Human Rights is proposed, to determine normative guidelines in the restriction of free speech, which can occur as long as it is proportional, with clear legal criteria and with respect to the principles democratic. The thesis aims to expose, from Alexis de Tocqueville and Habermas onwards, the origin of press having a strong connection with democracy in order to demonstrate the reason for the judicial reasoning of the STF and the Inter-American Court to associate the press with democracy. In order to analyze the development of communication channels and their relationship in the public space, the study of how news dissemination media are understood from the point of view of media, mediation and mediatization is developed. The concept known media is approached by McCombs' Agenda Theory, which is based on the pre-selection process of the data that will be conducted to the public space and the way in which they will be interpreted, while the sense of mediation from Thompson makes up the media news as a transmission center not only for facts, but also for values, culture and education. Further on, the thesis positions the emergence of mediatization of data flow channels through Muniz Sodré and Fausto Neto, as it states that the receiver of information is no longer a passive subject to actively participate in the communication process, which shows change perspective of the traditional concept of journalism when there is participation of people within the language of the editorial board. Finally, all the decisions about free speech of the Inter-American Court are exposed to examine what the criteria are when establishing limits for the exercise of free circulation of thoughts and news in democracy, in order to serve as a legal parameter for the Brazilian legal system.