Fake news e discurso de ódio a partir das eleições de 2018:a inépcia do Poder Judiciário em combater antes e durante o pleito eleitoral e a consequente incapacidade em reparar o dano.

Abstract

Fake news and hate speech have become an important weapon for the rise of far-right populists around the world, through the democratic path, and Brazil has entered the list of countries since 2018. Hate speech and fake news gained important prominence in the last presidential elections in Brazil, but before it was already an essential mechanism for the victory of Donald Trump, in the USA, and of other leaders around the world, as in Nigeria and Hungary. These methods of disinformation have been able to proliferate lies and hate speech on social networks within an electoral process in which leaders and members of the Judiciary have discredited the destructive force that these methods have. Based on the way in which they entered the country and generated consequences in the Brazilian elections in 2018, it is asked: How did the use of fake news and hate speech from the 2018 Elections and the consequent inability of the judiciary to fight them before, during and after the electoral process transformed the institution into an organ unable to repair the damage suffered by Brazilians? The present monograph aims to analyze this incapacity of the Judiciary to combat the proliferation of fake news and hate speech from the 2018 Elections. Even with the Brazilian legal system foreseeing situations that may make civil, criminal and electoral liable, it is concluded that there was and still is a slowness and inability of those who are competent to inspect and judge these situations to repair the damage caused, whether by the i) misconception about the concept of freedom of expression; ii) due to the legal consistency that parliamentary immunity offers to those who give lies and hate speech in Brasília or outside it; iii) the absence of a legislative density on the cases - such as, for example, the discussion about the constitutionality of art. 19 of the Marco Civil da Internet and the Fake News Bill project, which triggers and is the scene of a misplaced debate; and / or, finally, iv) the human being's spontaneous ability to propagate fake news and hate speech in an increasingly polarized environment and the impossibility of controlling / inspecting cases. In methodological terms, we opted for dogmatic-instrumental research, the hypothetical-deductive method and research techniques with the use of constitutional, electoral, penal doctrine, as well as the collection of historical, legislative, judicial precedents and news.