In jurisprudential research carried out on hate speech online, we identified that “hate speech” is not a concept used by Brazilian justice in cases of discriminatory language directed at women

By Fernanda K. Martins, Mariana Valente, Ester Borges, Clarice Tavares and Alessandra Gomes 

According to a survey conducted by the NGO, Plan International, eight out of ten girls and young women have suffered from virtual harassment in Brazil. The statistics are one of the findings of the Freedom online survey. – How girls and young women deal with harassment on social networks , carried out among 14,000 girls aged 15 to 25, in 22 countries, including Brazil. This data demonstrates how online gender-based violence affects the lives of women from an early age in our country. This is alarming, as situations of harassment end up becoming one of the main barriers for women and girls to fully exercise their freedom of expression, movement and participation on the internet. 

A similar concern has prompted InternetLab to engage in a joint project with the Indian non-governmental organization, IT for Change. Since 2018, in a Brazil / India dialogue, we have sought to understand how the mechanisms of communication perpetuate sexism, misogyny and violence directed at women on the internet. The research was constructed on the interface between the debates around online gender-based violence and the discussion about what can be understood as hate speech against women.  

 In this sense, one of the objectives of the project set out to observe how hate speech against women that occurs in the online sphere has been dealt with in Brazilian courts. We start from the understanding that there is no specific treatment of the case in Brazil, since we do not have this type of manifestation framed in any criminal classification or in other laws. From this, we ask how and what cases have reached the judiciary, whether in the civil or criminal sphere? Do court decisions use the term “hate speech” to describe certain situations? In addition, when it comes to social networks, do platforms like Twitter, Facebook and Instagram appear in the decisions. 

Which courts were researched?

To answer these questions, during 2020, we analyzed about 1,980 judgments from six courts: Bahia Court of Justice (TJBA), Federal District and Territories Court (TJDFT), Pará Court of Justice (TJPA), Court of Justice of Minas Gerais (TJMG), Court of Justice of Santa Catarina (TJSC) and Court of Justice of São Paulo (TJSP). The judgments were analysed and collected in an automated way through the jurisprudential consultation portals of each of the mentioned courts, using data scraping techniques with R language. The keywords used to download the judgments were: “misogyny”, “misogynous” “,  ” Misogynist and discourse “, ” feminism”, “feminist“, “violence and woman “, “sexism”, “sexist”, “machismo“ and “machista“, combined with the following terms “internet“, “social network”, “Facebook”,  “whatsapp”, “twitter” and “youtube”, placing them separately.

In this universe, we find, in 340 of the 1,980 documents, divided between the civil and criminal spheres, cases in which:

1. mobilization of a misogynistic or similar term, such as sexual objectification, judgment of a sexual character, creation of a profile relating the victim to the activity of prostitution and / or 

1.  threats to the physical integrity of women – even without explicit mention of terms considered misogynistic – in a virtual environment shared by more people than just the aggressor and the victim, as is the case with posts in feeds, groups, pages, tweets, stories etc. 

What we present here is a preliminary analysis of this material – which points to further issues that we will carry out and publish in the coming months. From this, we want to demonstrate the position we are taking and open dialogues that can enrich the journey. 

Types of offenses found 

When analyzing the offenses handed down, we created eight categories to fit the violent practices that were found: i) hypersexualization of the victims;   ii) association of the victim with prostitution;  iii) questioning the victim’s social performance in relation to motherhood;  iv) articulation between gender prejudices and other social markers of difference;  v) questioning the victims’ professional capacity;  vii) threats;  viii) unauthorized disclosure of intimate images; and, finally, notes of “moral defects”, which appeared as suggestions of betrayal, creating coups and bad character.  

These categories, in most cases, crossed, and were rarely portrayed singularly. We note, in all violence practices, the tendency to refer to women´s lives and morals from the point of view of those who wanted to reinforce gender inequalities and other forms of oppression. 

It is worth pointing out that not every offense can be considered hate speech. With this project, we want to understand what arrives in court and how it is understood, precisely to advance the understanding of how to characterize hate speech against women and what difficulties are found in their legal treatment under Brazilian law. 

Preliminary points to be highlighted 

A first point that caught our attention was the difficulty in defining what to call verbal violence committed in online spaces considered public or private. This division (and its problems), which assumes a very important meaning in the discussion of gender violence, seems to be blurred in the networks, for at least two reasons: its dynamism and the circulation of content between them. This means that it is quite common for a conversation on WhatsApp, for example, to be transposed publicly on a social network such as Facebook; or that something that was posted privately on Facebook reaches WhatsApp groups. Therefore, we decided to focus on cases that could be considered, at least at first, as public, that is, we directed our analysis to content that had circulated not only between the victim and the accused, but more broadly. With this, we hoped to escape from what we knew would be quite prevalent: cases of psychological domestic violence. A second point that caught our attention was the low presence of platforms as part of the process in the cases analyzed: only ten of them involved technology companies.  

Domestic violence as a legal organizing category 

It is important to emphasize that many of the assaults we analyzed were considered by the courts to be domestic violence, since they came from the victims’ current or former companions. However, because they occurred in online spaces considered public, we realized that these aggressions must be analyzed in a more complex way, since they affect not only the victim, individually, but also the social imagination around how women can be regarded and treated. 

 The understanding of the justice system that aggressions are identified in order to individualize and label them as belonging to the scope of an affective-sexual relationship is also reflected in the use of the concept of “hate speech”. Looking at a large multiplicity of cases – many of which would suit the multiple definitions of hate that circulate in the legal literature, in other countries, and in judicial decisions in Brazil, we realize that this term is not used in the courts to refer to online aggression against women. In addition, one of the research findings is that, at least with regard to the cases analyzed, there is no opposition between the notions of “hate speech” versus ”freedom of expression”.  

 As an initial reflection, we consider that, by not considering women as a group that may be the victim of hate speech online, the judicial system and the reporting spaces may become unskilled in combating the social naturalization of hate speech against women as a group. In this scenario, we reinforce the need for gender-based violence committed based on gender inequality to be more broadly thought out, not restricted to domestic spheres. Therefore, it is necessary to develop a discussion on violent practices aimed at women as a collective subject, including cases in which the speech is addressed to an individual woman. In the next steps, we will also analyze how this relates to the concepts of hate speech (and their operationalization) present in the literature, both in other countries and in Brazilian Courts (in relation to other subjects).