Criminal Law in the fight against Fakes News: Limits between freedom of expression and criminalization

Abstract

This research deals with the criminalization of fake news in Brazil where it shows that there is a legal challenge that requires an in-depth analysis of the interactions between freedom of expression and the protection of the democratic order. The justification for this study lies in the growing importance in the Brazilian legal and political scenario, particularly in relation to electoral processes. The general objective of this study is to analyze the performance of Criminal Law in the fight against fake news, investigating the limits between the protection of freedom of expression and the criminalization of these behaviors, focusing on their impact on electoral processes and democracy. To achieve this goal, specific objectives are defined as: conduct an investigation on the historical evolution of freedom of expression in the West, identifying the main philosophical and legal frameworks that influenced its construction; examine the interpretation of the Supreme Court (STF) on freedom of expression in the Brazilian legal system, with emphasis on the relevant decisions made in the period from 1988 to 2021; analyze the criminal provisions that regulate the dissemination of fake news, evaluating their constitutional adequacy and their impact on fundamental rights and electoral processes; and discuss the legal challenges and the possible consequences of criminalization Of fake news, seeking a balance between the repression of misinformation and the protection of constitutional guarantees. The methodology adopted is bibliographic and documentary research, using legal doctrine, Supreme Court jurisprudence and legal texts that address freedom of expression and fake news. This work concludes that, for a more effective and balanced approach to the criminalization of fake news, it is essential to promote clear regulation that respects constitutional limits, fostering a healthy and responsible information environment.