A AUDIÊNCIA PÚBLICA DO SUPREMO TRIBUNAL FEDERAL SOBRE DIREITO AO ESQUECIMENTO E O ENFRENTAMENTO DOS ARGUMENTOS DOS PARTICIPANTES: UMA ANÁLISE A PARTIR DA TEORIA DO DISCURSO DE JÜRGEN HABERMAS

Abstract

This research presents an analysis of the public hearing of the Federal Supreme Court (STF) on the right to be forgotten, from the perspective of Jürgen Habermas' Discourse Theory. Starting from the idea of the necessary participation of the public sphere in the decisions of a society, notably regarding the identification of the constitutional meaning, it analyzes how the STF tackles the arguments brought to the public hearing on the right to be forgotten, as well as in what way the approach of such arguments could be optimized. In order to do so, the concepts proposed by Habermas are studied, especially about deliberative democracy, together with the presuppositions of Ricardo Lorenzetti's judicial decision theory, mainly about the duty of reasoning and motivation of judicial decisions for the construction of an understanding that the judicial decision will be considered justified and endowed with democratic legitimacy if there is an effective confrontation of the arguments deducted in the process. It is sought that the effects of this reasoning are extended to the participants of the STF’s public hearings in the construction of the judicial decision under constitutional jurisdiction. In the theoretical part, the study adopts a hermeneutic-dialectical epistemological approach, through bibliographic research and document analysis. In the empirical research, the tackling of the arguments by the participants in the public hearing on the right to be forgotten is analyzed using the methodology of content analysis, in order to verify how the confrontation of such arguments by the STF’s Justices occurred. The study's problem is the questioning of how Habermas' discourse theory can contribute to an effective confrontation of the arguments raised in the STF’s public hearings. As an unfolding of this problem, the research seeks to find out how the STF Justices faced the arguments presented by the exhibitors of the public hearing on the right to be forgotten. The research assumes the hypothesis that Habermas' theory of discourse can contribute to an effective confrontation of the arguments taken to the STF’s public hearings insofar as it predicts that the Law must be the result of the political will of all those affected, derived from rational speeches, in a form of self-legislation. The empirical research lists a total of 25 indicators, based on the arguments of participants in the public hearing on the right to be forgotten, which are divided into four categories: freedom of expression, right to information, public interest versus private interest and human dignity. After the analysis, it is found that, of the 25 arguments raised by the participants, 16 were tackled by one or more Justices in an equivalent manner, while 3 arguments were approached in different ways and, finally, 6 arguments were not faced by the Justices in their opinions. The dissertation also analyzes how each Justice approached the aforementioned arguments. From this finding it can be observed that, while most of the arguments were faced, there is still a way to go to make constitutional jurisdiction more democratic and dialogic.