Digital wild west and its necessary boundaries

The judicial system and law enforcers in general play a key role in controlling and settling limits on the use of the Internet

As it is said, challenging situations breed the most promising opportunities. During the terrible times brought about by wars, groundbreaking inventions helped boost human development.

It was in the British intelligence’s tour de force against the Nazis in World War II that mathematician Alan Turing built the first computer in human history.

The way human beings relate to each other has been irreversibly changed by inventions such as Alan Turing’s and its offshoots, such as the Internet and, more recently, social media and digital content. We currently live in an interconnected world, where information spreads at breakneck speed.

The advantages brought by these innovations are immeasurable. However, the use of these tools depends on the user, who can use them for different purposes, including harming the fundamental rights of third parties. As for the internet, which allows immediate sharing of data and information, its characteristics amplify the potential for generation and spread of loss.

Naturally, offenses to fundamental rights are not recent phenomena. It turns out such a dissemination of threats has been greatly magnified in the current digital scenario. It’s time for the metaverse, memes, cancel culture, Facebook, TikTok, Instagram, digital influencers, monetization of online activities.

Right to image, intellectual and copyright property, honor, privacy/intimacy, freedom of expression, freedom of the press, human dignity, response, and due process of law are just some of the rights implicated in this digital jungle to which individuals and legal entities are subject.

As a proposed remedy for this disease, self-regulation by internet companies and the role of the Judicial Branch to protect rights in the digital world in Brazil gain traction.

The challenge law enforcers face is to resolve the conflict in the case of overlapping of different rights, notably in the virtual environment, which lacks more specific and current regulation, despite the implementation of certain laws, such as the Brazilian Civil Rights Framework for the Internet, the Right of Reply Act, and the General Personal Data Protection Act.

Justice Ricardo Cueva of the Brazilian Superior Court of Justice also notes that the challenge arising from the proliferation of hate speech and fake news on social media is to find appropriate solutions for the immediacy of the digital age and not mere transpositions of law enforcement techniques that originate in the analog era.

In the past, the Judiciary had more time to react, as the means of disseminating content were slower and more concentrated, with a court order directed to a communication outlet being enough to effectively remove a newspaper or magazine from circulation and, thus, the case was at least partly worked out.

The problem is that in the digital age, even if the Judiciary is able to quickly block the content of a social media, another platform will already be disseminating the same information translated to its audience.

In a scenario where the propagation of information reaches surprising speeds and where a new news outlet is founded every week, the predatory competition between media channels has assumed a relevant role in this dynamic. Oftentimes, the eagerness and race for originality end up threatening the truth itself, making it difficult to effectively use measures to comply with a court decision.

Unfortunately, we do not have a ready-made solution. The Judiciary Branch could find a shortcut by developing artificial intelligence-based technical tools.

Another path is to suppress the financial gains generated by the holders of social media platforms, aiming to curb violations of rights. This was the path trodden by the Superior Electoral Court in procedures that looked into the existence of eminently political content on social media platforms aimed at disseminating fake or biased news.

The fast, everchanging nature of the digital world hinders the effective performance of the Judiciary. The threat to rights in the virtual environment strains the limits of existing procedural instruments, induces the court to adopt creative solutions, and drives the Judiciary to further develop tools, such as the use of artificial intelligence, in the pursuit of effective and swift digital protection in the digital world.

After all, if in order to protect patrimonial rights, for instance, judges have at their disposal powerful coercive instruments, such as the immediate blocking of bank accounts, real estate and movable property and their respective rights, and others, to ensure compliance and effectiveness of court orders, why could one not think of a similar mechanism to protect the right to image, right to honor, right to privacy/intimacy, and other fundamental human rights?

From everything that has been addressed here, one thing is certain. Owing to the lack of sensitivity of the players in the digital world, which is currently completely decentralized, the mainstream media, the Judiciary, and law enforcers in general play a key role in controlling and outlining boundaries in this modern digital wild west, where overpowering rhetoric finds a place and the due process of law is disregarded, under penalty of becoming the very targets of the harsh courts of the internet, pronouncers of final and unappealable judgments.

*Source: Valor Econômico, Editoria Legislação & Tributos, Dec. 9, 2022.