scholarly journals Natureza jurídica da denúncia anônima dirigida à autoridade pública

2017 ◽  
Vol 1 (36) ◽  
Author(s):  
Morton Luiz Faria de Medeiros
Keyword(s):  
Freedom Of Expression ◽  
Legal Proceedings ◽  
Anonymous Reporting ◽  
The Press ◽  
Legal Texts ◽  
Right Of Action ◽  
The One ◽  
Definition Of ◽  
The Right ◽  
Political Character

RESUMOO artigo busca analisar o conceito e a natureza jurídica da denúncia anônima, a partir dos métodos de abordagem hipotético-dedutivo e hermenêutico, por intermédio da interpretação de textos jurídicos extraídos de documentos legislativos, jurisprudenciais e doutrinários. Para tanto, principia-se pela definição de anonimato, investigando-se se a denúncia anônima constitui manifestação da liberdade de expressão ou de manifestação de pensamento, ideia ou opinião, a partir de depuração desses conceitos elementares que a circundam. Embora não haja uniformidade normativa ou doutrinária quanto a delimitações terminológicas para distinguir entre as liberdades de expressão, de manifestação de pensamento, de manifestação de opinião e de imprensa, conclui-se que o direito fundamental de liberdade de manifestação de pensamento é mais abrangente, possuindo dimensões individual (liberdade de expressão) e social (liberdade de prestação de informação), além da modalidade de liberdade de provocação de autoridade pública – em que se enquadram a denúncia anônima e os direitos de petição e de ação, por exemplo. Contudo, se, por um lado, a denúncia anônima não se confunde com o direito de petição – em face de este ostentar caráter político e estar atrelado ao direito a ser informado (o que é dificultado pelo anonimato) – tampouco pode ser equiparado ao direito de ação, que para instaurar processo judicial já demanda um mínimo de elementos de prova.ABSTRACTThis paper analyzes the concept and legal basis of anonymous reporting, using hypothetical-deductive and hermeneutics methods, through the interpretation of legal texts extracted from legislative, doctrine and jurisprudence documents. It begins with the definition of anonymity, investigating whether anonymous report constitutes manifestation of freedom of expression or manifestation of thought, idea or opinion, from the depuration of the elementary concepts that surround it. Although there is no normative or doctrinal uniformity regarding terminological delimitations to distinguish between the freedoms of expression, of expression of thought, of expression of opinion and of the press, it is concluded that the fundamental right of freedom of expression of thought is wider, including individual (Freedom of expression) and social (freedom to provide information) dimensions, in addition to the modality of freedom of provocation of public authority - which include anonymous reporting and petition and action rights, for example. However, if, on the one hand, the anonymous reporting is not the same as the right of petition - because the latter has a political character and is linked to the right to be informed (which is hampered by anonymity), it cannot be the same as the right of action, which in order to institute legal proceedings already requires a minimum of evidence.

The Pitfalls and Perils of Being a Digital Journalist in Venezuela

2020 ◽  
pp. 319-337
Author(s):  
Mariateresa Garrido
Keyword(s):  
Digital Media ◽  
Freedom Of Expression ◽  
Secondary Data ◽  
The Other ◽  
Freedom Of The Press ◽  
The Past ◽  
Other Hand ◽  
The Press ◽  
The One ◽  
The Right

To be a journalist in Venezuela is very dangerous. In the past decade, there has been an increase of attacks against media and their personnel. On the one hand, attacks against journalists include harassment (physical, digital, legal), illegal detentions, kidnapping, and assassination. On the other hand, digital media have experienced blockages (DNS), internet shutdowns and slow-downs, failures in the connection, and restrictions to access internet-based platforms and content. Since 2014, the situation is deteriorating and limitations to exercise the right to freedom of expression have increased. However, this issue remains understudied; hence, this chapter considers primary and secondary data to analyze the types of limitations experienced by Venezuelan digital journalists from 2014 to 2018, explains the effects of ambiguous regulations and the use of problematic interpretations, and describes the inadequacies of national policies to promote freedom of the press.

Freedom of Expression versus Privacy and the Right to Reputation

2017 ◽  
Author(s):  
Dirk Voorhoof
Keyword(s):  
Public Interest ◽  
Freedom Of Expression ◽  
Media Freedom ◽  
Investigative Journalism ◽  
The Public ◽  
The Right Of Privacy ◽  
The One ◽  
Grand Chamber ◽  
The Right ◽  
The Impact

The normative perspective of this chapter is how to guarantee respect for the fundamental values of freedom of expression and journalistic reporting on matters of public interest in cases where a (public) person claims protection of his or her right to reputation. First it explains why there is an increasing number and expanding potential of conflicts between the right to freedom of expression and media freedom (Article 10 ECHR), on the one hand, and the right of privacy and the right to protection of reputation (Article 8 ECHR), on the other. In addressing and analysing the European Court’s balancing approach in this domain, the characteristics and the impact of the seminal 2012 Grand Chamber judgment in Axel Springer AG v. Germany (no. 1) are identified and explained. On the basis of the analysis of the Court’s subsequent jurisprudence in defamation cases it evaluates whether this case law preserves the public watchdog-function of media, investigative journalism and NGOs reporting on matters of public interest, but tarnishing the reputation of public figures.

Governing Fake News: The Regulation of Social Media and the Right to Freedom of Expression in the Era of Emergency

2021 ◽  
pp. 1-41
Author(s):  
Donato VESE
Keyword(s):  
Social Media ◽  
Freedom Of Expression ◽  
Self Regulation ◽  
Public Law ◽  
Fake News ◽  
Human Right ◽  
Social Media Platforms ◽  
Definition Of ◽  
The Right ◽  
Media Censorship

Governments around the world are strictly regulating information on social media in the interests of addressing fake news. There is, however, a risk that the uncontrolled spread of information could increase the adverse effects of the COVID-19 health emergency through the influence of false and misleading news. Yet governments may well use health emergency regulation as a pretext for implementing draconian restrictions on the right to freedom of expression, as well as increasing social media censorship (ie chilling effects). This article seeks to challenge the stringent legislative and administrative measures governments have recently put in place in order to analyse their negative implications for the right to freedom of expression and to suggest different regulatory approaches in the context of public law. These controversial government policies are discussed in order to clarify why freedom of expression cannot be allowed to be jeopardised in the process of trying to manage fake news. Firstly, an analysis of the legal definition of fake news in academia is presented in order to establish the essential characteristics of the phenomenon (Section II). Secondly, the legislative and administrative measures implemented by governments at both international (Section III) and European Union (EU) levels (Section IV) are assessed, showing how they may undermine a core human right by curtailing freedom of expression. Then, starting from the premise of social media as a “watchdog” of democracy and moving on to the contention that fake news is a phenomenon of “mature” democracy, the article argues that public law already protects freedom of expression and ensures its effectiveness at the international and EU levels through some fundamental rules (Section V). There follows a discussion of the key regulatory approaches, and, as alternatives to government intervention, self-regulation and especially empowering users are proposed as strategies to effectively manage fake news by mitigating the risks of undue interference by regulators in the right to freedom of expression (Section VI). The article concludes by offering some remarks on the proposed solution and in particular by recommending the implementation of reliability ratings on social media platforms (Section VII).

scholarly journals Reconstructing the Contours of the Copyright Originality and Idea- Expression Doctrines Regarding the Right to Deny Access to Works

2014 ◽  
Vol 1 (4) ◽  
pp. 921-940
Author(s):  
Michael D. Murray
Keyword(s):  
First Amendment ◽  
Freedom Of Expression ◽  
Cultural Knowledge ◽  
Fair Use ◽  
Digital Revolution ◽  
Content Development ◽  
Proper Definition ◽  
Definition Of ◽  
Access To Knowledge ◽  
The Right

ccess to innovative scientific, literary, and artistic content has never been more important to the public than now, in the digital age. Thanks to the digital revolution carried out through such means as super-computational power at super-affordable prices, the Internet, broadband penetration, and contemporary computer science and technology, the global, national, and local public finds itself at the convergence of unprecedented scientific and cultural knowledge and content development, along with unprecedented means to distribute, communicate, and access that knowledge. This Article joins the conversation on the Access-to-Knowledge, Access-to- Medicine, and Access-to-Art movements by asserting that the copyright restrictions affecting knowledge, innovation, and original thought implicate copyright’s originality and idea-expression doctrines first and fair use doctrine second. The parallel conversation in copyright law that focuses on the proper definition of the contours of copyright as described in the U.S. Supreme Court’s most recent constitutional law cases on copyright—Feist, Eldred, Golan, and Kirtsaeng—interprets the originality and idea-expression doctrines as being necessary for the proper balance between copyright protection and First Amendment freedom of expression. This Article seeks to join together the two conversations by focusing attention on the right to access published works under both copyright and First Amendment law. Access to works is part and parcel of the copyright contours debate. It is a “first principles” question to be answered before the question of manipulation, appropriation, or fair use is contemplated. The original intent of the Copyright Clause and its need to accommodate the First Amendment freedom of expression support the construction of the contours of copyright to include a right to access knowledge and information. Therefore, the originality and idea-expression doctrines should be reconstructed to recognize that the right to deny access to published works is extremely limited if not non-existent within the properly constructed contours of copyright.

scholarly journals The right to know and freedom of expression in the Arab world in the Digital Age

2019 ◽  
Vol 9 (3) ◽  
pp. 27
Author(s):  
Iman Mohamed Zahra ◽  
Hosni Mohamed Nasr
Keyword(s):  
New Media ◽  
Freedom Of Expression ◽  
Arab World ◽  
Digital Age ◽  
Freedom Of The Press ◽  
Right To Know ◽  
The Press ◽  
The Right To Know ◽  
Arab States ◽  
The Right

'The right to know' represents a fundamental and vital human right. Progress and development of nations fully require information freedom and knowledge sharing. Using a qualitative analysis of a sample of information and press laws in most of Arab states, this paper aims at discussing 'the right to know' from different perspectives while highlighting the surrounding aspects and their consequences on the right of freedom of expression in those states. The paper also tends to clarify the effects of new media on the vision and practices of governments regarding 'the right to know' and the freedom of the press in the digital age. Moreover, the paper analyzes the different types of censorship the Arab states use to control the new media. Findings shed light on different aspect of 'the right to know' within the different challenges of the digital age and clarify the strong bondage of this right with the other human rights, especially freedom of expression and freedom of the press.

Freedom of Expression and Democracy

2021 ◽  
pp. 81-105
Author(s):  
Ashutosh Bhagwat ◽  
James Weinstein
Keyword(s):  
Eighteenth Century ◽  
Free Speech ◽  
Freedom Of Expression ◽  
Theoretical Perspective ◽  
Modern World ◽  
Popular Government ◽  
The Press ◽  
Political Association ◽  
The Right ◽  
The Relationship

This chapter focuses on the relationship between freedom of expression and democracy from both a historical and a theoretical perspective. The term ‘freedom of expression’ includes free speech, freedom of the press, the right to petition government, and freedom of political association. Eighteenth-century proponents of popular government had long offered democratic justifications for freedom of expression. The chapter then demonstrates that freedom of political expression is a necessary component of democracy. It describes two core functions of such expression: an informing and a legitimating one. Finally, the chapter examines the concept of ‘democracy’, noting various ways in which democracies vary among themselves, as well as the implications of those variations for freedom of expression. Even before democratic forms of government took root in the modern world.

The Nature of Ususfructus

1946 ◽  
Vol 9 (2) ◽  
pp. 159-170
Author(s):  
Kopel Kagan
Keyword(s):  
Great Difficulty ◽  
Roman Law ◽  
Present Position ◽  
Modern Times ◽  
The Subject ◽  
The One ◽  
Definition Of ◽  
The Right ◽  
Opening Statements ◽  
In Virtue Of

No satisfactory definition of Dominium in Roman Law has yet been achieved. Amongst English writers Austin many years ago found great difficulty in this question while in modern times Professor Buckland has written ‘it is thus difficult to define Dominium precisely.’ Again, Poste, dealing with Gaius' discussion of dominium, says that his opening statements are ‘deplorably confused.’ These examples are enough to indicate the condition, of uncertainty which prevails. In my submission this uncertainty exists mainly because the conception of ususfructus has never yet been explained adequately. Of Possessio it has been said ‘the definition of Possessio to give the results outlined is a matter of great difficulty. No perfectly correct solution may be possible,’ and this statement is generally accepted as a correct assessment of the present position in juristic literature. But here, too, in my opinion, the reason is again connected with usufruct, for the possessio of the usufructuary has not yet been adequately determined. Gaius (2.93) tells us ‘usufructuarius vero usucapere non potest; primuum quod non possidet, sed habet ius utendi et fruendi.’ Ulpian holds that he had possessio in fact (‘Naturaliter videtur possidere is qui usum fructum habet’ D.41.2.12). On this subject Roby says ‘the fructuary was not strictly a possessor and therefore if he was deprived from enjoying he had not a claim to the original interdict de vi but in virtue of his quasi-possessio a special interdict was granted him.’ Austin saw difficulty in the whole problem of possessio. He wrote ‘by Savigny in his treatise on possessio it is remarked that the possessio of a right of usufruct … resembles the possessio of a thing, by the proprietor, or by an adverse possessor exercising rights of property over the thing. And that a disturbance of the one possession resembles the disturbance of the other. Now this must happen for the reason I have already stated:—namely, that the right of usufruct or user, like that of property, is indefinite in point of user. For what is possession (meaning legal possession not mere physical handling of the subject) but the exercise of a right ?’

Doing the Full Monty: Will Publicizing Tax Information Increase Compliance?

2005 ◽  
Vol 18 (1) ◽  
pp. 95-117 ◽  
Author(s):  
Marjorie E. Kornhauser
Keyword(s):  
Essential Element ◽  
Fundamental Principle ◽  
Right To Know ◽  
Negative Attitudes ◽  
The Right To Privacy ◽  
Political Costs ◽  
Tax Laws ◽  
The One ◽  
Definition Of ◽  
The Right

Publicity of information is a fundamental principle of American democracy. Not only is it instrumental in increasing compliance with the laws, a necessity of any government, but also it is an essential element of the right to know-which itself is an aspect of the first amendment right to free speech. Unfortunately, publicity often conflicts with another fundamental right-the right to privacy. In regards to taxes, citizens essentially have two rights to know: a right to know what the tax laws are, and a right to know that these laws are being administered fairly. Publicity in the tax context traditionally means making tax return information public records in an attempt to ensure the fair administration of the tax laws. This type of publicity, however, generates intense hostility because taxpayers perceive it as a huge invasion of their privacy.After examining the pros and cons of traditional publicity of tax information, this Essay suggests that tax publicity be reconceived more broadly. Redefined in the dictionary sense of simply the transmission of information, tax publicity can include a wide array of communications, varying as to content and audience, which can better achieve publicity’s underlying goals with minimal invasions of privacy. A large portion of publicity in this broad sense can be-and should be-educational.The Essay outlines four publicity proposals to stimulate discussion. Three use the expanded definition of publicity and focus on individual taxpayers: an annual tax statement, a short booklet to accompany the 1040, called Know Your Taxes, and an annual W-4. These essentially educational programs should deliver tax information to taxpayers more effectively than currently occurs. The fourth, more controversial, proposal suggests partial publicity-in the traditional sense. It attempts, however, to minimize the customary objections to publicizing tax return information by reducing invasions of privacy.All the proposals will cost money, but probably less than the costs of enforcing compliance only through increased audits and litigation. They may also have psychic and political costs. Although recent studies show that more informed taxpayers are often more compliant, some of the information may trigger negative attitudes which would decrease compliance and/or create pressure for lower taxes.Regardless of whether taxpayer reactions to the increased information are positive or negative, the greater publicity proposed in the Essay could have salutary effects, especially if it occurred in the context of a rational debate by elected officials about tax policy (instead of the current inflammatory rhetorical sound bites). On the one hand, if taxpayers respond positively to publicity, compliance will increase. If they act negatively, and their hostility to taxes increase, at least the publicity will arm them with more precise information that will allow them to focus their objections to the income tax and thereby lobby more effectively for real tax reform.

scholarly journals PROSPECTS FOR THE IMPLEMENTATION OF THE EUROPEAN ADMINISTRATIVE SPACE IN UKRAINE

2019 ◽  
pp. 116-120
Author(s):  
M. A. Boiaryntseva
Keyword(s):  
Rule Of Law ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Legal Proceedings ◽  
National Courts ◽  
Administration Of Justice ◽  
Administrative Courts ◽  
Definition Of ◽  
The Right ◽  
Discretionary Powers

In the article the author determines the peculiarities of consideration and resolution of administrative disputes in foreign countries. The author emphasizes that the priority international and European principle of the implementation of justice is the observance of the rule of law. It has been determined that the contents of the precedents of the European Court of Human Rights testify that they not only contain substantive decisions, but also the norms whose application solves the problem of the interpretation of legal institutions, in particular, such as the principles of the administration of justice. The author stresses that the achievement of the requirements of ensuring the rule of law and the rule of law in accordance with European standards requires the definition of the limits of exercising discretionary powers by public administration bodies. The discretionary powers of public authorities and local self-government bodies cannot be unrestricted, and national courts should determine the limits of interference in their implementation. It is substantiated that the performed characteristic of the aforementioned normative legal acts allows us to conclude that it is necessary to study the principles of the implementation of legal proceedings in the European administrative space as a conditional "benchmark" of the development of the system of administrative courts established by the current legislation. It is stressed that the recommendations that require their implementation in the current administrative-procedural legislation include the implementation of such standards for the implementation of legal proceedings as foreseen requirements for the abolition of the right to appeal in the event that a person failed to comply with part of the court decision that provided for immediate enforcement; definition of procedure for pre-trial and extrajudicial settlement of administrative disputes. It is substantiated that borrowing from the experience of administrative tribunals established in the Anglo-Saxon judicial system, where administrative complaints are dealt with by specially authorized lawyers, is one of the possible ways of solving the problems of a significant load on the system of administrative courts of Ukraine. The author concludes that the effectiveness of the national justice system as a whole, and in particular, administrative justice, depends on the implementation and further implementation of international and foreign standards for the administration of justice.

scholarly journals DEFINITION OF THE CONCEPT OF «DEFAMATION» IN THE COUNTRIES OF CONTITENTAL EUROPE

2021 ◽  
pp. 104-111
Author(s):  
N. I. Skoropysova
Keyword(s):  
Western Europe ◽  
Freedom Of Expression ◽  
Burden Of Proof ◽  
Moral Rights ◽  
Protection Mechanism ◽  
Inaccurate Information ◽  
European Court ◽  
Protected Object ◽  
Definition Of ◽  
The Right

The article discusses the key issues of the interpretation of the concept of “defamation” in the countries of Western Europe. In a modern social and legal state, considerable attention is paid to the protection of individual rights and freedoms as the foundations of democracy. One of the basic personal rights is the right to personal dignity, protection of honor and reputation. Analysis of the structures of the current legislation, the positions of the Supreme Court, acts of the European Court, as well as classical and newest scientific approaches, defamation is an offense expressed in the dissemination of inaccurate information that violates the right of a legal entity to a business reputation. Honor, dignity, business reputation are constituent elements of such categories as personal moral rights and intangible benefits, in order to ensure the realization and functioning of the rights of which, a well-thought-out, well-coordinated and effective protection mechanism must be produced. Attention is focused on the fact that for the proper operation of such a mechanism, it is necessary to determine, first of all, the protected object, what are its features and boundaries that need to be regulated by law. Indeed, in the case of securing an incomplete list of protected in the legislation, fixing in the norms not all signs of the protected or the presence of gaps in the regulation of this legal relationship, the potential for abuse of the right or misinterpretation of its norms arises. National laws define in different ways whether the burden of proof lies with the plaintiff or the defendant. It is concluded that defamation is one of the unlawful acts that infringe upon honor, dignity and reputation and requires further study in the practice of the European Court. In dealing with defamation cases, courts always need to find a compromise and strike a balance between freedom of expression, freedom of thought and speech, and protection of dignity, honor and reputation.

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