The frequent evolution of social media and the constant changes resulting from new, faster and more widespread and impactful communication formats, led to the need to improve the legal mechanisms of control and off-balance sheet reparation, avoiding them, supported by the right to freedom expression of thought, excesses capable of generating damage were committed.
The most significant legal framework with regard to the protection of the personality rights of the individual affected by offenses made by the media or social media was Law n. 13.188/2015, which provides for the victim’s right to reply or rectify in matters disclosed, published or transmitted by the media.
In its first articles, the aforementioned law regulates the exercise of the Right of Reply on the same day, time and for the same period as that used by the offender, in accordance with the provisions of the Federal Constitution of 1988 in its art. 5, V.
For no other reason, this law became known as the Law of the Right of Response and, over the past seven years, it has based the filing of several lawsuits with the scope of seeking to compel offenders to repair damages caused to the image and honor of those offended by transmitted content in media vehicles.
It is important to highlight that the Law brought unequivocal advances in the protection of individual rights, containing abuses perpetrated by those who exceeded themselves in the regular exercise of these rights, without, however, overflowing into discretion. Among the list of fifteen articles, there is no indication of any mechanism to which it is possible to attribute the status of an instrument capable of giving rise to censorship, limiting itself only to correcting possible distortions, allowing the victim to expose the facts.
In the same sense, it is worth noting that the rule in question also filled an important gap left by the repeal of the Press Law, a remnant of the period in which the country was under the aegis of the Military Dictatorship, which was declared unconstitutional by the Supreme Court in the middle of the year of 2009, without, at the time, the regulation of compensation for damages arising from the abuse of the right to free expression of thought and opinion.
However, it is understood that some legal provisions of the rule in question still need improvement, since, with regard to practical and executive aspects, the legislation is still far from reality, since, although it aims to speed up the damage repair process, ends up neglecting essential foundations of the Brazilian legal system.
In this sense, in its article 5, § 2, it regulates the rules for the processing of the process to exercise the right of reply, providing that: “The special rite action referred to in this Law will be instructed with the evidence of the grievance and the request for a reply or rectification not complied with, as well as the text of the answer or rectification to be disclosed, published or transmitted, under penalty of ineptitude of the complaint, and processed within a maximum period of 30 (thirty) days.
Therefore, by establishing speed as a rule for the processing and judgment of cases involving the reply, the legislation achieves a dual purpose: i) effectiveness, ensuring compliance within certain parameters of reasonableness and, ii) effectiveness, safeguarding the realization in time reasonable, allowing those affected by the message conveyed by the appointed offender to also become aware of the victim’s response.
However, despite the scope of speed and effectiveness conferred by the legislator, the deadline established in the aforementioned article 5 deserves considerations, notably regarding the non-compliance with fundamental precepts of the national legal system, in particular the principles of adversary proceedings and full defense.
This is because by providing that the period for judgment on the merits cannot exceed a period of 30 (thirty) days, the Law creates a dangerous gap, as the short period of time means harm to the necessary evidential delay required for the investigation of the facts, especially when it comes to cases of great social repercussion, in which media attention and social reverberation demand greater care in the analysis of the subject matter of the process.
In addition, despite the fact that the evidentiary delay remains unfeasible, the imposition of a deadline for completion of the rite also creates uncertainties regarding the filing of appeals against any interlocutory decision rendered in the course of the procedural instruction, given that the deadlines for the Appeal are, in some cases, equivalent to the term foreseen for the magistrate to process and judge the entire procedure (would it be equivalent to the foreseen term?)
The impossibility of claiming an exception to the truth (sole paragraph, article 6[1]) also constitutes an obstacle to the regular exercise of the adversary system and of the full defense when the offender is accused of committing an injury.
Such impediment prevents the defendant from eventual proof that the act imputed to him would not constitute damage to the victim, as it is a fact of public knowledge, without the power of being characterized as injury. In other words, even if it is a notorious fact, the legislation leaves a dangerous space for the offended party to use the means of communication to assert their version of the facts.
Thus, despite the undeniable advances made by legislation in order to protect the individual’s image against offenses made by third parties, it is still necessary to improve the legal mechanisms in order to ensure respect for the adversary system and full defense.
With small adjustments, it would be possible to maintain the guarantee of obtaining the real truth of the facts without, however, giving rise to premature convictions that end up supporting the search for self-promotion and media rise.
[1] Art. 6 Upon receipt of the request for response or correction, the judge, within 24 (twenty-four) hours, will send a summons to the person responsible for the media vehicle so that:
[…]
Sole paragraph. The interlocutory appeal consisting in injury will not admit proof of the truth.
Available at: https://analise.com/opiniao/desafios-e-inovacoes-da-lei-do-direito-de-resposta
Autor: Pedro Batistoti Boller • email: pedro.boller@ernestoborges.com.br
