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Lawyer Luna Van Brussel Barroso clarifies whether cyberstalking can be applied to criticism made online against a public person, considering the right to freedom of expression.

From the Editor

 

Tuesday, May 21, 2024

 

Updated at 15:03

 

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Imagine receiving 500 calls and 1,300 messages in a single day, from the same person. This persecution, recently experienced by a doctor, became public with the arrest of the stalker, nutrition student Welch .

 

The woman met the doctor in 2018, during a psychiatric consultation at a private hospital. Since then, the persecution has been incessant. The doctor, who preferred not to be identified, reported that the stalker even tried to contact his wife and son. " She called when he was 7, 8 years old, then he didn't really understand that and said: 'Daddy, there's a woman calling me, asking if I'm at school, where I am' ," the victim stated in an interview.

 

Between 2019 and 2020, 42 police reports were recorded. In 2020, signed an agreement with the Public Prosecutor's Office committing to stop the persecutions. However, in 2022, the stalker broke into the doctor's office and attacked his wife.  

 

 

 

CNN reported the arrest of  Welch for stalking a doctor for five years. (Image: Reproduction/CNN)

The case illustrates stalking in a private context, which is the most common form of stalking, involving domestic or intimate relationships. 

 

Read more

Stalking: Man convicted of stalking ex-girlfriend

 

On the other hand, when a public figure is victimized by critical posts on a social network, is it stalking or just the exercise of freedom of expression?

 

Origins

 

The crime of stalking, or "cyberstalking", when carried out virtually, originated in the United States. In 1989, actress Rebecca Schaeffer was murdered by an obsessive fan after three years of persecution. This case led to the creation of the first stalking law in California. Federally, the crime was typified by the Violence Against Women Act ( VAWA ) of 1996.

 

 

 

Periodical The Los Angeles Times reported the murder of actress Rebecca Schaeffer, chased and killed by a stalker. In the article, the newspaper states that the fan accused of the actress' death feels "guilty". (Image: The Los Angeles Times)

In the European Union, the classification evolved in the 2000s, culminating in the 2013 Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence , which called on States to adopt legislative measures to criminalize the practice.

 

In Brazil, the crime was typified in 2021 with the inclusion of art. 147-A to the CP by law 14,132 , symbolically approved on Women's Day. The law aims to combat cases of domestic violence and protect women against persistent and unwanted harassment.

 

Public and private relations

 

In an opinion, lawyer Luna Van Brussel Barroso examined the applicability of art. 147-A in situations in which the alleged victim is a public figure who receives criticism on social media. In these cases, it is possible to question at what point demonstrations stop being freedom of expression and become persecution.

 

Luna explains that the criminalization of stalking aims to prevent serious violence and emotional distress caused by persistent acts of stalking. Thus, the configuration of the crime outside domestic and/or intimate relationships depends on clear demonstrations of concrete acts of persecution or, in the case of discursive acts, that these are directed directly at the victim or their family members and cause significant anxiety and anguish.

 

In the document, the lawyer analyzes a case in which the victim reported the author of criticism made on open social networks for the crime of stalking. Luna points out that, as he is a shareholder of publicly traded companies, frequently mentioned in journalistic articles, tolerance for criticism and public questions must be greater.

 

" Therefore, interpreting the criminal type in an expansive way, to apply it to the facts of the case,  would have a silencing effect on freedom of expression and the right to criticize  public figures, whether they are shareholders of public companies or other notorious figures, in addition to  delegitimizing the functioning of institutions that perform a social/public function ."

 

The lawyer also reports that in research at the STF, STJ and the five largest national courts (TJ/SP, TJ/RJ, TJ/MG, TJ/RS and TJ/PR) no precedents were found that had applied the crime of stalking to cases in which there was no direct communication between the accused and the victim.

 

The vast majority of cases " prove that the crime of stalking is  predominantly applied in the context of domestic and/or intimate relationships between the  offender and the victim, with cases of application of the crime outside these circumstances being rare ."

 

Thus, he adds, " in light of these elements, it is possible to conclude that the application of article 147-A to cases in which (i) there was no physical persecution, (ii) nor direct message targeting to the victim or their family members, (iii ) not even emotional violence that goes beyond mere unpleasantness, and (iv) the alleged victim is a public figure, would represent an excessive and disproportionate restriction on freedom of expression. "

 

 

In an opinion, lawyer Luna van Brussel Barroso points out that criticism of public figures on social media may not constitute cyberstalking. (Image: 

Freedom of expression

 

According to Luna, freedom of expression is a fundamental and essential right for democracy. The CF ensures the free expression of thought, the free expression of intellectual, artistic, scientific and communication activities, and the right of access to information.

 

The STF has reiterated the preferential position of this right, stating that restrictions on freedom of expression must be exceptional and justified, explains Luna. She also states that the Supreme Court reinforces that criticism, even if harsh and uncomfortable, plays a crucial role in transparency and control of the activities of public figures.

 

In this way, the privacy of individuals in public life is subject to a less rigid measurement parameter than that of private individuals. True information obtained through lawful means cannot be prohibited just because it is considered frivolous or in bad taste, highlights the reviewer.

 

In the end, Luna highlights that the crime of stalking exists and is serious, but that the classification in the case of criticism of public people on social networks goes against the logic of the inclusion of art. 147-A to the CP and represents a threat to freedom of expression and criticism from famous people, " including under penalty of emptying the type for application in cases where it is  truly necessary ".

 

 link: https://www.migalhas.com.br/quentes/407801/criticas-nas-redes-sociais-podem-configurar-crime-de-stalking