O combate jurídico à injúria racial no meio digital no Brasil: uma análise crítica das defasagens em Portugal e Espanha enquanto nações historicamente colonizadoras

Abstract

This research seeks to determine, from a critical-comparative perspective, the extent to which the Brazilian legal order is effective in addressing the offense of injúria racial (racial insult) committed in the digital environment and how constitutional and jurisprudential choices condition those outcomes. The study examines the treatment afforded to injúria racial perpetrated in cyberspace under Brazilian law and, for illustrative contrast, compares its reception in the Iberian societies historically responsible for Brazil’s colonization—Portugal and Spain. To that end, the inquiry adopts structural racism theory as the guiding theoretical framework for understanding social relations in the three societies, while surveying the concepts of race and racism and the definitions of cyberspace and cyber-democracy, with a view to analyzing the exercise of individual liberties online, especially freedom of expression as constitutionally framed in all three legal systems. The study further analyzes how Brazilian case law has advanced in its understanding of racial crimes and structural racism, culminating in the enactment of Law No. 14,532/2023, which reclassifies injúria racial as a form of racism and, consequently, renders it not subject to statutes of limitation and ineligible for bail. Moreover, an examination of the evolving jurisprudence of Brazil’s higher courts indicates progress in the protection of minority groups’ rights. In this sense, by reviewing the legal sources consolidating racial crimes in the three jurisdictions and emblematic cases on the subject, the research identifies similarities and differences in the configuration of the offense of injúria racial when committed in cyberspace, and affirms the working hypothesis that Brazil is more advanced in its treatment of racial crimes than the countries responsible for its colonization, which in turn afford greater latitude to freedom of expression when compared to the Brazilian legal order.