scholarly journals LIBERDADE DE EXPRESSÃO: DIREITO AO ESQUECIMENTO E JUSTIÇA DE TRANSIÇÃO

Percurso ◽  
2019 ◽  
Vol 1 (28) ◽  
pp. 248
Author(s):  
Gisleni Valezi RAYMUNDO
Keyword(s):  
Legal System ◽  
Transitional Justice ◽  
Freedom Of Expression ◽  
Private Life ◽  
Current Debate ◽  
Democratic State ◽  
The Face ◽  
The Right

RESUMOTrata-se de breve abordagem acerca da liberdade de expressão no Estado Democrático de Direito, por meio da qual se objetiva contextualizar as formas dessa espécie de liberdade previstas no ordenamento jurídico, diante de julgamentos do STF, bem como acerca do direito ao esquecimento e o papel do Poder Judiciário nesse mesmo cenário. Diante dessa perspectiva, se insere o atual debate sobre a Justiça de Transição, o direito ao esquecimento, sendo que esse constitui contraposição às facetas daquela, na medida em que encerra a possibilidade de discussão de acontecimentos pretéritos em detrimento da vida privada. PALAVRAS-CHAVE: Liberdade de Expressão; Direito ao Esquecimento; Justiça de Transição. ABSTRACTThis is a brief approach to freedom of expression in the Democratic State of Law, which seeks to contextualize the forms of this kind of freedom provided for in the legal system, in the face of FTS trials, as well as the right to forgetfulness and role of the Judiciary in this same scenario. In view of this perspective, the current debate on the Transitional Justice is inserted, the right to oblivion, in fact, is opposed to the facets of transitional justice, since it closes the possibility of discussing past events in detriment of private life. KEYWORDS: Freedom of Expression; Right to Forgetfulness; Justice of Transition.

scholarly journals The Contributions Of CJEU In The Name Of The Principle Of Balancing – A Test Of The Role Of The Court?

2015 ◽  
Vol 21 (2) ◽  
pp. 472-478
Author(s):  
Gina Orga-Dumitriu
Keyword(s):  
Freedom Of Expression ◽  
Personal Data ◽  
Private Life ◽  
Fundamental Rights ◽  
Eu Law ◽  
Effective Protection ◽  
Fundamental Freedoms ◽  
The Right ◽  
The Eu

Abstract From the traditional functions of the general principles of the EU law – of interpretation, completion of the gaps and legality control, the principle of balancing seems to meet the most the exigencies of the first of these. The limits of the role of CJEU are certainly put to the test when it is called to settle conflicts between fundamental rights/fundamental freedoms. The trends formulated in Schmidberger (on the conflict between the free circulation of the commodities and the freedom of expression) or Promusicae (on the conflict between the right to the effective protection of the intellectual property and the right to the respect of the private life and the protection of the personal data) are more than illustrative. The doctrine assessments of the action of this principle reflect three fields in which the applicability thereof tends to reserve to the Court a role that is susceptible of creating controversies on its traditional extension. According to the authorized voice of Professor Norbert Reich, the balancing in the jurisprudence on the abusive clauses, the balancing for the avoidance of excessive protection and the balancing in social conflicts (making visible an aggravation of the conflict between fundamental rights and fundamental freedoms) are concerned.

The role of freedom of expression in the construction of historical memory

2019 ◽  
Vol 101 (910) ◽  
pp. 173-196
Author(s):  
Germán Parra Gallego
Keyword(s):  
Transitional Justice ◽  
Freedom Of Expression ◽  
Historical Memory ◽  
Case Law ◽  
Armed Conflicts ◽  
High Courts ◽  
The Media ◽  
State Archives ◽  
The Right

AbstractThe construction of historical memory is closely linked to the guarantees provided by the right to freedom of expression. This right ensures that victims and society in general are able to speak about the past, narrate their own stories, and call for and influence social discussion and institutional reform. Mechanisms such as access to State archives, participation in the media, journalistic coverage of armed conflicts and the free flow of stories, artistic endeavours, criticisms and condemnations empower victims and the rest of society in the construction of alternative narratives and independent memories. This article examines case law of the Inter-American System of Human Rights that elaborates on freedom of expression, and considers its importance for the construction of historical memory. It also touches upon some decisions taken by the Colombian high courts, relevant to a context in which mechanisms of transitional justice have recently been implemented.

scholarly journals Bioethics and Biolaw in the Vaccine against COVID 19 in Brazil

2021 ◽  
Vol 4 (3) ◽  
Author(s):  
Eliana Aló Silveira
Keyword(s):  
Legal System ◽  
Human Dignity ◽  
Fundamental Rights ◽  
Human Being ◽  
Right To Life ◽  
Federal Constitution ◽  
Democratic State ◽  
Ethical Content ◽  
The Face ◽  
The Right

The pandemic that was caused by COVID 19 made the world rethink ethical principles, morals, and justice, but always side by side with science. Never has bioethics been thought of so much, as a science that aims to provide the ethical content so that the human being is treated with dignity in the face of scientific techniques that concern life. Bio law as a branch of legal science reveals itself as an indispensable branch to the legal system, to regulate and reconcile biotechnological advances with the principle of human dignity, founded on democracy and the defense of fundamental rights. In the international sphere, the right to life is foreseen in art. 4 of the 1969 American Convention on Human Rights, a document that was ratified by Brazil and comes from the regional system. In the Brazilian legal system, the provision is in article 1, clause III, of the Federal Constitution of 1988, which established human dignity as the foundation of the Democratic State of Law, also regulating, in article 5, the right to life. Starting from these guidelines that the human being should not be considered a "thing", or an instrument, the thought, even if philosophical, can lead to important conclusions in the field of scientific experimentation, especially with what has been happening in relation to the vaccines for COVID-19, that even if approved by a committee and following international protocols, one cannot guarantee with them the absolute protection of human dignity, principles of bioethics and fundamental human values. And, because of these discussions, the courts are urged to manifest themselves about the refusals of workers to be vaccinated.

When the State Speaks, What Should It Say?

2012 ◽  
Author(s):  
Corey Brettschneider
Keyword(s):  
Freedom Of Expression ◽  
The State ◽  
Hate Groups ◽  
New Approach ◽  
State Action ◽  
Democratic State ◽  
Theory Of Value ◽  
The Right ◽  
Equal Citizenship ◽  
The Ideal

How should a liberal democracy respond to hate groups and others that oppose the ideal of free and equal citizenship? The democratic state faces the hard choice of either protecting the rights of hate groups and allowing their views to spread, or banning their views and violating citizens' rights to freedoms of expression, association, and religion. Avoiding the familiar yet problematic responses to these issues, this book proposes a new approach called value democracy. The theory of value democracy argues that the state should protect the right to express illiberal beliefs, but the state should also engage in democratic persuasion when it speaks through its various expressive capacities: publicly criticizing, and giving reasons to reject, hate-based or other discriminatory viewpoints. Distinguishing between two kinds of state action—expressive and coercive—the book contends that public criticism of viewpoints advocating discrimination based on race, gender, or sexual orientation should be pursued through the state's expressive capacities as speaker, educator, and spender. When the state uses its expressive capacities to promote the values of free and equal citizenship, it engages in democratic persuasion. By using democratic persuasion, the state can both respect rights and counter hateful or discriminatory viewpoints. The book extends this analysis from freedom of expression to the freedoms of religion and association, and shows that value democracy can uphold the protection of these freedoms while promoting equality for all citizens.

scholarly journals What Constitutions Can Do (but Courts Sometimes Don’t): Property, Speech, and the Influence of Constitutional Norms on Private Law

2004 ◽  
Vol 17 (1) ◽  
pp. 61-81 ◽  
Author(s):  
Oliver Gerstenberg
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Freedom Of Expression ◽  
Social Democracy ◽  
Recent Attempt ◽  
Private Law ◽  
Human Rights Norms ◽  
The Right ◽  
Higher Law

In this paper I want to address, against the background of the ECtHR’s recent attempt to resolve the clash between property rights and the right to freedom of expression in its decision in Appleby v. UK, two questions, both of which I take to be related to the overarching theme of “social democracy”. First, there is the problem of the influence of “higher law”-of human rights norms and constitutional norms-on private law norms; second, the question of the role of adjudication in “constitutionalizing” private law, in other words, the question of the “judicial cognizability” of constitutional norms within private law.

What of the Child? Preventing the Publication of Children's Names After the Age of 18

2021 ◽  
Vol 24 ◽  
pp. 1-31
Author(s):  
Sophy Baird
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Freedom Of Expression ◽  
Best Interests ◽  
Child Victims ◽  
Criminal Proceedings ◽  
The Right To Privacy ◽  
The Face ◽  
The Right

Children are afforded a number of protections when they encounter the criminal justice system. The need for special protection stems from the vulnerable position children occupy in society. When children form part of the criminal justice system, either by being an offender, victim, or witness, they may be subjected to harm. To mitigate against the potential harm that may be caused, our law provides that criminal proceedings involving children should not be open to the public, subject to the discretion of the court. This protection naturally seems at odds with the principle of open justice. However, the courts have reconciled the limitation with the legal purpose it serves. For all the protection and the lengths that the law goes to protect the identity of children in this regard, it appears there is an unofficial timer dictating when this protection should end. The media have been at the forefront of this conundrum to the extent that they believe that once a child (offender, victim, or witness) turns 18 years old, they are free to reveal the child's identity. This belief, grounded in the right to freedom of expression and the principle of open justice, is at odds with the principle of child's best interests, right to dignity and the right to privacy. It also stares incredulously in the face of the aims of the Child Justice Act and the principles of restorative justice. Measured against the detrimental psychological effects experienced by child victims, witnesses, and offenders, this article aims to critically analyse the legal and practical implications of revealing the identity of child victims, witnesses, and offenders after they turn 18 years old.

scholarly journals Peran Notaris Dalam Penggunaan Akta SKMHT Yang Tidak Diikuti APHT Terhadap Debitor Wanprestasi Terkait Pemberian Fasilitas Kredit Pemilikan Rumah Subsidi (Studi Kasus di Bank Tabungan Negara Pekalongan)

Jurnal Akta ◽  
2018 ◽  
Vol 5 (1) ◽  
pp. 275
Author(s):  
Rifki Yusuf ◽  
Maryanto Maryanto
Keyword(s):  
Qualitative Analysis ◽  
The State ◽  
High Potential ◽  
Physical Security ◽  
Power Of Attorney ◽  
Savings Bank ◽  
The Face ◽  
The Right ◽  
Right Of Property

ABSTRAK Kabupaten Pekalongan merupakan lokasi yang memiliki potensi tinggi dalam penggunaan Surat Kuasa Membebankan Hak Tanggungan (SKMHT), hal ini disebabkan oleh gencarnya pembangunan oleh masyarakat yang membutuhkan dana besar yang antara lain berasal dari kredit yang diperoleh dengan menggunakan lembaga Hak Tanggungan yang selanjutnya menimbulkan berbagai masalah seperti apabila debitor wanprestasi. BTN selaku kreditor dalam pemberian KPR bersubsidi kepada debitor umumnya tidak menguasai benda yang menjadi jaminan kredit secara fisik, tetapi hanya memiliki hak kebendaan secara administratif. Pengikatan obyek jaminan yang berupa tanah, yaitu Hak Milik, Hak Guna Bangunan dan Hak Guna Usaha, prosesnya hanya sampai dengan Surat Kuasa Membebankan Hak Tanggungan (SKMHT) saja, dengan tidak dibebankan Hak Tanggungan atas obyek jaminan tersebut, maka BTN belum memiliki hak kebendaan atas jaminan tersebut secara faktual.Tujuan dari penelitian ini adalah untuk mengkaji dan menganalisis peran notaris dalam hal debitor wanprestasi, penggunaan SKMHT yang tidak diikuti APHT dalam hal debitor wanprestasi terkait dengan pemberian fasilitas Kredit Pemilikan Rumah Subsidi pada Bank Tabungan Negara serta upaya pihak Bank Tabungan Negara dalam hal debitor wanprestasi terhadap pemberian fasilitas Kredit Pemilikan Rumah. Metode yang digunakan dalam penelitian ini adalah metode analisis kualitatif, yaitu data yang diperoleh disusun secara sistematis kemudian dianalisis secara kualitatif agar dapat diperoleh kejelasan masalah yang akan dibahas.Dalam penelitian ini disimpulkan bahwa dalam menghadapi debitor wanprestasi Bank BTN mengambil langkah melakukan penjualan kembali dengan menggunakan kuasa menjual yang tercantum dalam akta “Pengakuan Hutang”, serta peningkatan SKMHT ke APHTkepada calon debitor, dan peran notaris yang hanya sebagai pembuat akta sehingga tidak turut serta jika terjadi wanprestasi.Kata kunci: Notaris, SKMHT, APHT, wanprestasi ABSTRACTPekalongan Regency is a location that has a high potential in the use of Power of Attorney Charging the Guarantee Right (SKMHT), this is caused by incessant development by people who need big fund which among others comes from the credit obtained by using the Mortgage Institution which further cause various problems such as if the debtor is defaulted. BTN as a creditor in the granting of subsidized KPR to the debtor generally does not control objects that become credit for physical security, but only have the right of property administratively. The binding of the object of collateral in the form of land, namely Right of Ownership, Building Rights and Cultivation Right, the process is only up to the Power of Attorney Charging the Guarantee Right (SKMHT) only, without the burden of the Guaranteed Fund on the object of the guarantee, BTN has no material right the guarantee is factual.The purpose of this study is to examine and analyze the role of a notary in the case of debtor wanprestasi, the use of SKMHT not followed APHT in the case of debtor wanprestasi associated with the provision of Subsidized House Ownership Credit in the State Savings Bank and the efforts of the State Savings Bank in the case of debt defaulting to the grant Housing Loan facility. The method used in this study is the method of qualitative analysis, the data obtained is arranged systematically and then analyzed qualitatively in order to obtain clarity of issues to be discussed.In this study it is concluded that in the face of debtor wanprestasi Bank BTN take steps to resell by using the power of sale which stated in deed "Recognition of Debt", and increase SKMHT to APHT to debitor candidate, and notary role which only as deed maker so do not participate if there was a default.Keywords: notary, SKMHT, APHT, wanprestasi

scholarly journals Guilty of using Google: Reconciling the right to a fair trial with the right to freedom of expression and addressing juror misconduct in the age of social media

2021 ◽  
Author(s):  
◽  
Emma Jane Smith
Keyword(s):  
Social Media ◽  
Legal System ◽  
Freedom Of Expression ◽  
Fair Trial ◽  
Communications Technology ◽  
Independent Research ◽  
The Subject ◽  
The Law ◽  
The Right

<p>It is widely accepted that the right to a fair trial is one of the most important guarantees contained within our legal system. That right is undermined when a jury member conducts his or her own research into a case. This type of juror misconduct constitutes contempt of court. In the light of the fact that the law of contempt is currently the subject of review in a number of jurisdictions, this paper considers how the law of contempt could be adapted to better manage the risk of jurors undertaking independent research. After a discussion of the current law and some problems with it, particularly those created by modern communications technology, this paper considers a number of possible reform options. It makes two broad recommendations. First, that the law should focus relatively more on preventing jurors undertaking their own research than on limiting publication. Second, that independent research by jurors should be the subject of statutory criminalisation, and a range of measures should be adopted to increase jurors’ understanding of the importance of not going outside the evidence before them and to minimize any incentives for jurors to conduct their own research.</p>

scholarly journals POSTRZEGANIE ZWYCZAJÓW ODNOSZĄCYCH SIĘ DO OBOWIĄZKU ZACHOWANIA POUFNOŚCI W ARBITRAŻU. ANALIZA WYNIKÓW ANKIETY PRZEPROWADZONEJ PRZEZ SĄD ARBITRAŻOWY LEWIATAN WŚRÓD POLSKICH PRAKTYKÓW ARBITRAŻOWYCH

2016 ◽  
Vol 13 (3) ◽  
pp. 89
Author(s):  
Beata Gessel-Kalinowska vel Kalisz
Keyword(s):  
Public Opinion ◽  
Legal System ◽  
Uniform Norm ◽  
Professional Group ◽  
Controversial Issues ◽  
The Social ◽  
The Subject ◽  
The Right ◽  
Confidentiality And Privacy

THE PERCEPTION OF THE PRACTICE OF CONFIDENTIALITY IN ARBITRATION. AN ANALYSIS OF THE RESULTS OF A SURVEY CARRIED OUT BY THE LEWIATAN COURT OF ARBITRATION AMONG POLISH ARBITRATION PRACTITIONERS Summary As with numerous other systems of law, such as Norwegian, Swedish or Australian law, the Polish legal system does not have a clear and uniform norm of law governing confidentiality and privacy in arbitration. Public opinion frequently refers to the role of custom as the source of the obligation to preserve confidentiality, although usually it does so without a detailed analysis of the subject and object of this obligation. This fact provided the inspiration for a survey carried out among Polish arbitration practitioners. The results of the survey present an interesting picture of what is subjectively perceived by arbitration practitioners as forming part of the confidentiality canons in arbitration proceedings. In principle, they reflect the worldwide trends, i.e. as far as the object of the confidentiality obligation is concerned – in camera sessions and the confidentiality of awards, and as regards its subject – the confidentiality obligation imposed on arbitrators and arbitration institutions. In addition, the customary practice of keeping confidential any information obtained in the course of proceedings is perceived as the right conduct as far as the object of the obligation is concerned. One of the very controversial issues is the matter of parties’ responsibilities, which leads to further questions as to individual arbitrators’ membership of the social (professional) group known as “arbitration practitioners”.

scholarly journals RESPONSABILIDADE EM FACE DE PIQUETE NA JURISPRUDÊNCIA NORTE-AMERICANA

2019 ◽  
Vol 1 (54) ◽  
pp. 499
Author(s):  
Edilton MEIRELES
Keyword(s):  
United States ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
United States Supreme Court ◽  
The United States ◽  
The Supreme Court ◽  
Deductive Method ◽  
The Face ◽  
The Subject ◽  
The Right

RESUMONeste trabalho tratamos do direito de manifestação em piquetes e da responsabilidade que possa advir desses atos em face da jurisprudência da Suprema Corte dos Estados Unidos da América. A partir da análise das principais decisões da Suprema Corte se pode concluir que, de modo geral, os participantes do piquete não respondem quando agem de forma não ilegal. Está sedimentado, no entanto, o entendimento de que o organizador do piquete responde pelos atos dos participantes. A pesquisa desenvolvida se justifica enquanto estudo comparativo e diante do pouco debate existente no Brasil a respeito do tema. Na pesquisa foi utilizado o método dedutivo, limitada à ciência dogmática do direito, com estudo de casos apreciados pelo judiciário. PALAVRAS-CHAVES: Responsabilidade; Piquete; Estados Unidos; Suprema Corte; Liberdade De Expressão. ABSTRACTIn this work we deal with the right of demonstration in pickets and the responsibility that may arise from these acts in the face of the jurisprudence of the Supreme Court of the United States of America. From the analysis of the Supreme Court's main decisions it can be concluded that, in general, the picket participants do not respond when they act in a non-illegal way. It is settled, however, the understanding that the picket organizer responds by the acts of the participants. The research developed is justified as a comparative study and in view of the little debate that exists in Brazil regarding the subject. In the research was used the deductive method, limited to the dogmatic science of law, with study of cases appreciated by the judiciary.KEYWORDS: Responsibility; Picket; United States; Supreme Court; Freedom Of Expression.

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