O caráter instrumental dos direitos fundamentais na análise da liberdade de expressão e do direito à imagem e à privacidade na sociedade em rede

Abstract

The advance occurred to the means of communication makes society more connected, which causes a very fast spread of information. In order to achieve a complete and effective practice of democracy it is essential to create a harmonic link between the fundamental rights of freedom of speech, image and privacy, considering that the balance between them seeks the protection and the conservation of human dignity. The constitutional principle of unit establishes that there is no hierarchy among the fundamental rights in the Constitution, therefore, since all of them have the same degree of constitutional protection, the collision between them is inevitable. What leads us to a standoff point which should be solved by the analysis of each degree of importance, through the balancing, once it is not possible to state the invalidity of the fundamental rights in the legal order. Considering the impossibility to establish a fixed rule abstractly with the aim of solving such collision, it is indispensable to study the particular case, with its factual and legal circumstances. This work aims to analyze the collision among the fundamental rights, supported by the Constitution, of freedom of speech and image and privacy rights, in the network society and debate the possible parameters that can be use to solve the collision.