Fake news e direito penal: uma possível tipificação

Abstract

The Internet has become one of today's most significant access channels of communication. This increased access to the environment has given users the power to produce their own content and, consequently, also to be exposed to immeasurable content both in quantity and quality. In this environment emerged the phenomenon of post-truth that is linked to fake news, causing damage to the Democratic Rule of Law. This study aims to analyze the possibility that constitutes the typification and, consequently, the criminal liability of the practice in which the Fake News phenomenon occurs. It is well known that current legislation is a limbo when it comes to this subject and that it has been causing huge problems for society, both in the public and private spheres. In the orbit of Electoral Law, some provisions for conduct can be mentioned. However, the phenomenon is emerging in other social frontiers. The concern with such a phenomenon is such that laws and draft laws have emerged, with the purpose of curbing and containing, fake news, around the world. In Brazil, currently, there are more than 20 bills in the National Congress, trying to criminalize and punish those responsible for the practice, from production to the dissemination of this type of content. For such, the knowledge of the bills, which are being processed in the National Congress, about the subject; the clarification of concepts related to news and information; the delimitation of the concept of fake news; the analysis of the concepts of freedom of expression and freedom of the press, which could challenge the possibility of criminalizing fake news; the science of the current approach to the subject in the civil sphere; and the evaluation of fraudulent news. These elements became necessary for the development of this research. In the analysis of the bills that have been proposed in the National Congress and the jurisprudential examination on the subject, it was necessary to use a hypothetical-deductive method about the bills and jurisprudence. The discussion about fake news has evolved vigorously, because among the bills it is possible to verify that the legislator has been worrying, also, with the public order. As for the implementation of regulatory bodies through regulated self-regulation, there is a need for a maturation in the Brazilian legal system. In this sense, the criminal typification of the fake news phenomenon will give the proper dimension to what the subject requires, because information and the cyber environment constitute a fundamental right. So everyone has the right to a healthy and democratic cyber environment. As much as the information must be healthy for the maintenance of the Democratic Rule of Law.