Heloisa Nogueira dos Santos (Bachelor of Laws)
Catholic University of Campinas, Brazil
ORCID: https://orcid.org/0000-0001-8838-8828
[email protected]
Date Received: April 11, 2020 – Date Reviewed: April 22, 2020
Date Accepted: October 12, 2020 – Date Published: January 1, 2021
Abstract
The objective of this article is to argue for the applicability of the social function principle to the right to
communication; to this end, the methodology employed was a literature review of authors who support the
extension of said principle to cases other than those provided for in the Federal Constitution and the
Brazilian Civil Code. Through the study carried out, it was concluded that there is
compatibility between the institutes, being a possibility of realizing the right to communication
in concrete hypotheses of violation.
Keywords
Social function – Right to communication – Effectiveness
Summary
The purpose of this article is to defend the applicability of the principle of social function to the right
to communication. To this end, the methodology applied was a literary review by authors who
support the extension of this principle to other distinct hypotheses provided for in the Constitution
Federal and the Civil Code. Brasileño Through the study it was concluded that there is a compatibility
between the institutes, with a possibility of realizing the right to communication in hypothesis
specific violations.
Keywords
Social function – Right to communication – Effectiveness
To Cite this Article:
Santos, Heloisa Nogueira dos. The social function as a principle of the right to communication. Journal
Inclusiones Vol: 8 Special Issue (2021): 182-189.
Creative Commons Attribution-NonCommercial 3.0 Unported License
(CC BY-NC 3.0)
International License
Introduction
The discussion regarding the right to communication and ways to ensure its effective application is urgent and necessary; in an era where we are bombarded with new information every second, the right to information is no longer limited to what was originally set forth in Article 19 of the Universal Declaration of Human Rights (1948)1, but has become broader, coming to be known as the "right to communication."
Unlike other rights, the right to communication has increasingly come under scrutiny—and faced violation—in contemporary times. Although this right is not explicitly enshrined in our Magna Carta, the 1988 Federal Constitution makes subtle allusions in its articles to a right that was already being highlighted by the MacBride Report, published by UNESCO in 1983.
The right to communication has always existed, intrinsically linked to the right to freedom of expression and thought; however, the nuances currently being debated differ from those discussed at the beginning of the century.
Given the ease with which information—especially news—spreads, establishing criteria to determine whether the right to communication is being effectively realized has become more challenging; mere access to information is insufficient, as information must engage with all sectors of the population in a unified manner, and meaningful debate must be a possibility.
Considering that UNESCO, the UN, and current global governance bodies already recognize the right to communication as a fundamental right, it is necessary to outline how it aligns with the Brazilian legal framework based on principles already present in our Federal Constitution.
The principle of social function directly supports the effectiveness sought for this “new” fundamental right; by establishing that the public interest must prevail over private interests in practical matters such as property and contracts, its goal is to benefit the collective in a diffuse manner—much like the right to communication, which, when violated, produces real consequences that are not limited to specific individuals. Thus, although there is no express provision in our legal system regarding the application of the social function principle to the right to communication, their compatibility is evident.
The principle of social function in the Brazilian legal system is enshrined in Article 5, XXIII of the Federal Constitution2 and Article 421 of the Civil Code,3 which establish the applicability of said principle to contracts and private property.
1 UN, “Universal Declaration Of Humans” (Paris: UN, 1948). http://www.direitoshumanos.usp.br/index.php/Declaração-Universal-dos-Direitos- Humans/universal-declaration-of-human-rights.html. (15.09.2019)
2 Brazil, Constitution of the Federative Republic of Brazil of 1988. Brasília: National Constituent Assembly, 10.05.1988. http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm
(08.10.2019)
3 Brazil, Civil Code, Brasília: Federal Senate, 2002.
http://www.planalto.gov.br/ccivil_03/leis/2002/l10406.htm> (28.10.2019)
When interpreting the Weimar Constitution, Salomão states that the principle of social function, as we know it, is rooted in German law, drawing upon the maxim "property entails obligations." The author further clarifies that the evolution of constitutional theory had to adapt to social changes—particularly regarding the importance of the business enterprise as an economic agent—thereby extending the principle of social function to business activities.
In Law No. 11.101/054 Article 47 expressly establishes the applicability of the principle of social function to business activity; this serves as one of the primary grounds for society to bear the negative, temporary costs associated with a company undergoing judicial reorganization.
The extension of the principle of social function to laws and legal concepts other than property rights and freedom of contract can be observed systematically in current legislation; once again, Salomão provides a perfect example, as follows:
“Examples abound. This is not the appropriate place to describe them in detail, but rather only to the extent necessary to demonstrate their connection to the central idea of social function. Thus, in antitrust law, the concept of curbing price abuse (Art. 21 of Law No. 8.884/1994) has evolved into a genuine positive obligation for the monopolist to charge competitive prices. In consumer law, the true revolution brought about by the new rules on liability for product defects (Art. 18 of Law No. 8.078/1990) amounts to nothing less than establishing a statutory guarantee that supplements the contractual guarantee for the consumer's benefit. Finally, in environmental law, the *Cappelettian* concept of remedying caused harm—even in the absence of specific, suffered damage (Art. 225, § 2, of the Federal Constitution)—is a corollary to the conception of social function as involving positive duties rather than merely an obligation to abstain from action. In practice, this has led to the establishment of various specific obligations for companies, such as the duty to treat solid waste, recycle batteries and tires, etc.”5
This broad applicability of the social function principle serves as a regulatory instrument for relationships between natural and legal persons across all types of interactions; it imposes a balance that facilitates the development of other legal concepts which, on their own, sometimes lack the objectivity needed to resolve actual conflicts.
The public nature of the social function is evident, as can be inferred from the provisions of the aforementioned article of the Federal Constitution. In this regard, Rachel Sztajn explains that the social function “is the contribution a phenomenon makes to a system of which it is a part; under this definition, there is no obligation or liability on anyone's part, as it is limited to linking the event to its results.”6.
This understanding is crucial for grasping the compatibility of the social function principle with the right to communication, insofar as the collective interest and the interest
4 Brazil, Bankruptcy and Judicial and Extrajudicial Reorganization Law (Brasília: Federal Senate, 2005). http://www.planalto.gov.br/ccivil_03/_Ato2004-2006/2005/Lei/L11101.htm (28.10.2019)
5 Salomão Calixto Filho, “Social Function of the Contract: Preliminary Notes,” *Revista dos Tribunais*
Vol. 823 (2004): 67–86
6 Rachel Sztajn, “Social Function,” *Revista de Direito Empresarial* Vol. 7 (2015): 423–427.
...private [interests] are in constant conflict regarding the protection, promotion, and guarantee of the aforementioned fundamental right. The ramifications arising from this discussion encompass costs and consequences for society as a whole, making the principle of social function perfectly applicable to specific cases involving the right to communication.
Evolution of the right to information alongside new forms of communication
As explored above, the the principle of of social function is compatible with the fundamental right to communicate, since both that both involve a collective interest requiring protection.
As to is known, the the right to communication is not to explicitly enshrined in the 1988 Federal Constitution; it is expressed in the text solely regarding the protection of the right to free expression and access to information:
Although the current Brazilian Constitution is known as the "guaranteeing constitution"— given the the list right fundamental guarantees that it contains in its text, the which is also based on and subject to the Universal Declaration of Human Rights—it addressed the right to communication in a subtle manner, linking it to the right to information.
This occurred because the debate regarding the need to protect and guarantee the right to communication was only just emerging on the international stage; nuances that are very evident today were not yet apparent at the time the 1988 Constitution was promulgated, and the protection of the right to information appeared to be sufficiently comprehensive.
It is important to highlight the international landscape of that period regarding the right to information and communication, as this allows for a better understanding of how the right to information evolved within the Brazilian legal system..One of the most important international documents—if not the most important—to address the right to communication and the right to information for the first time was the MacBride Report, produced by subject-matter experts and released by UNESCO in 1980.8The report exposed the actual situation of inequality in the production and dissemination of information, noting that the West produced a large share of information and news content. right large relevance. The Western control over information at a level global level was—and remains—undeniable. The report proposed measures to alter this scenario over time; naturally, achieving this required the commitment of major world powers.
This pattern of informational disproportion at the global level is also mirrored within Brazil. In a study conducted by Camilo Vannuchi using documents published by the Chamber of Deputies' Committee on Science and Technology, Communication and Informatics, and citing Lima and Rabelo, it was found that there is a monopoly on the means of dissemination—particularly regarding news broadcast on television—as shown below:
The challenge of regulating and promoting the right to information is persistent; although this issue was recognized globally in the 1980s, violations continue to occur in virtually every context observed..
The advent of the internet amplified all of this; initially, one might have thought that the ability to send and receive information so easily would resolve the problem of information imbalance or monopoly.
Unfortunately, that is not the case; in Brazil, many fundamental issues remain unresolved or insufficiently addressed, and while the internet acted as a catalyst for at the entire discussion, it also gave rise to new situations right involving violations of the fundamental right to information and communication.
A magazine of the Lawyer10 at its edition of No. 143, published at August right 2019 in honor of the 70th anniversary of the Universal Declaration of Human Rights, featured an article highlighting the Senate's current situation regarding bills aimed at resolving the "fake news" problem
The proposals range from criminal to financial penalties, yet all seem like a a Band-Aid for a a problem structural that that can only be overcome through commitment and proper oversight, going far beyond the mere act of publishing false news online.
Thus, the chaotic scenario we face today demonstrates that the right to information has failed to materialize in the form proposed both by the Constitution (Federal) and by UNESCO guidelines. The advent of the internet accelerated the pace of events, offering solutions to certain problems regarding access to information; however, it also introduced new issues that compounded existing challenges, such as the informational monopoly held by television networks in Brazil, thereby hindering the protection of the right to communication.
The right to communication as a fundamental right
As can be seen, the right to communication initially emerged as an extension of the right to information. However, it only appeared in an official international document in 1980, with the publication of the MacBride Report by UNESCO.
In explaining the evolution of the right to communication—stemming from the inadequacy of the right to information to safeguard the necessary guarantees—Vannuchi states that:
“The right to communication emerged from the realization that the right to information and freedom of expression were insufficient concepts to encompass the guarantees necessary of for the exercise of of communication, which is viewed as an essential act for human dignity and the full development of individuals. It is a concept distinct from those, although it touches upon them. Transparency laws, for instance, seek to guarantee the right to information but do not interfere with the production chain of social communication.”11
This observation made by the Author aligns at compatible with the what is set forth in the MacBride Report; in proposing the existence of the right to communication as a right autonomous from the right to information, the report maintains that human beings have a need not only to receive information but also to engage in a dialogue with it—a need that varies in many ways depending on the interlocutor and the receiver in this relationship.
Thus, the right to communication is grounded in and directly connected to the guarantee of the human being to express themselves freely, as provided for in Article 19 of the Universal Declaration of Human Rights. The human capacity to live in a society that ensures critical and intellectual development—through access to information and the ability to engage in dialogue with it—is a fundamental right for the promotion of human dignity.
Compatibility between the principle of social function and the right to communication
As previously noted, the principle of social function is an instrument that can be used to regulate situations where a balance must be struck between private interests and those of the collective or the community.
As previously noted, the right to communication is a fundamental right, just like the right to freedom of expression and information. Its protection and promotion are essential in the society we live in today; the existence of the internet and its impact on how we relate to one another and live our lives demonstrate the immense importance of safeguarding the right to communication.
As aptly stated in the MacBride Report, the subtle difference between the act of informing and the act of communicating lies in the possibility of interaction—specifically, the potential for a response from the recipient. This concept is perfectly applicable to current situations involving violations of the right to communication.
11 Camilo Vannuchi, “The right to communication… 9-10.
People's need to be connected is a fundamental right; without adequate instruments to resolve conflicts or situations involving violations, it simply perpetuates such a scenario, making that entire a solution seem increasingly distant.
Thus, considering that the Brazilian Federal Constitution contains many tools aimed at guaranteeing rights and addressing Human Rights violations, it is entirely appropriate to use them to align the current legal framework with the reality faced by society.
In this vein, the that to it aims for with entire application of the the principle of of social social [aspect] as a premise of the right to communication and is right practical in nature, in the that concerns entire a solution right conflicts, with the compatibility between these concepts lying in the public character of both. It is undeniable that the right to communication will always arise within the social sphere, making and that regulations regarding instances where the right is violated must be practical and effective.
A creation right since law that prescribes a situation specific that encompasses the right to communication is unable to solve the problems faced by a society that spends much of its time connected to networks and servers that constantly appear as potential violators of the right to communication.
More of that never entire need right to protect the right fundamental the communication is urgent within the society that we live in, entire spread right news fake [news] grows more entire every day; the need to seek out sources and engage in dialogue with them has never been as essential as today. A plurality right agents transmitting and receiving information never was so great as in days current, is not to have a instrument based on principles that allows entire analyzing conflicts with a view to an effective solution poses yet another obstacle to guaranteeing and protecting fundamental rights.
Thus, in light of the foregoing, one can conclude that the principle of social function is compatible with the pursuit of an effective right to communication in its current forms—namely, via the internet, magazines, television, and, above all, social media.
Conclusion
Regarding that for the promotion, the guarantee and protection of right the information and the the right to communication and is necessary firstly to visualize the current scenario, that to has in the Brazil, which faces unresolved issues concerning the protection of this fundamental right; for, as previously stated, the existence of monopolies informational within the Brazilian landscape makes the concrete resolution of problems—such as the spread of false news—an almost impossible task.
Thus, entire proposal that to makes and is entire application of the principle of of social social as a way to ensure the effectiveness of the right to communication. The use of existing instruments in the legal system right way compatible and is since way of facilitating entire the application of the law in a coherent manner, bringing greater security to the Democratic Rule of Law regarding the relationships established between the parties involved.
