A teoria dos precedentes judiciais na modernidade líquida: reflexões sobre os direitos da personalidade e liberdade de expressão à luz do direito ao esquecimento na era digital no Brasil

Abstract

The main objective of this thesis is to study the premises and theoretical-value foundations to justify the existence of the right to be forgotten in the Digital Era in Brazil. In this perspective, bibliographic research and the study of national and foreign judicial precedents will be the main sources of academic research. At this point, the method adopted in relation to the collected data will be the dialectic, which promotes the confrontation of contradictory arguments, which will guarantee the critical examination of the research. Initially, the theoretical paradigm of Zygmunt Bauman’s Modernity-Liquid is used, which feeds on the metaphor of “liquidity” to refer to modern times as volatile and fluid, bringing instability to all human relations, whether family or professional. At this point, one has the online environment as predominantly liquid space, unstable, uncertain and sometimes insecure. Therefore, in the context of the networked society, the complexity of the legal-social relations of man with the digital environment is seen, especially as regards the new aspects related to individual memory and collective memory. In fact, the digital legacy presupposes the transition from the private to the public atmosphere, resulting in a number of ethical-legal problems with regard to shared private memories (texts, photos, videos etc), especially in the face of the dissemination of social networks all around the world. In this way, the first of the inquired anxieties arises: do people have the right to change their lives without being forever chased by the ghost of unwanted information from their past? Later, this thesis also proposes to investigate the phenomenon of the constitutionalization of private law in the light of CF/88, denoting new axiological and epistemological parameters before civil law. In this regard, priority should be given to the rights of the personality and freedom of expression in the face of new technologies, as well as their possible conflicts in the digital age in the face of the novel human right of access to the Internet. Then, the thesis is directed to the study of the theory of judicial precedents, because it is a methodology identified that can justify the main objective outlined. In other words, there is an unequivocal conclusion that the genesis of the right to be forgotten as a human right occurs through judicial precedents of the Court of Justice of the European Union (CJEU), notably in the classic precedent Gonzalez vs. Google. In this way, a wide study of national and foreign judicial precedents is pursued in search of stability, integrity and coherence for the realization of civil-constitutional rights within the civil law and common law legal systems. Indeed, after a detailed investigation of the right to be forgotten in Latin American, US and European countries, in addition to the study of recent judicial precedents in Brazil, the feasibility of the proposal in Brazil is analyzed by establishing two basic premises: (1) the harmonious combination of the rights of personality and freedom of expression in the light of the dignity of the human person; (2) the obstacle to the consumerist logic applicable to fundamental rights, freedoms and guarantees in the online environment.