BALANCING THE PRINCIPLE OF PUBLICITY AND THE RIGHT TO PRIVACY IN THE INFORMATIONAL SOCIETY: A HERMENEUTICAL CRITIQUE TO THE APPLICATION OF ALEXY’S LAW OF COLLISION IN BRAZIL

Abstract

The hermeneutical question of the collision between the principle of administrative transparency and disclosure of information and the fundamental right to privacy is renewed in the context of Informational Society, which proposes a redesign of the old problem of the violation of individual freedoms justified by the supremacy of public interest, operated by the widespread use the new information technologies. This paper questions what are the limits of privacy and what are the limits of government disclosure of information. What is the procedure to find those limits? And yet, can one ensure the realization of both? To what extent? In this context, it studies the collision between the fundamental right to privacy and the principle of transparency in public administration, both guarded by the 1988 Federal Constitution. The critique to the application of collision law is illustrated by the Suspension of Writ of Mandamus No. 3902, judged in 2011 by the brazilian Supreme Court and confirmed by the same Court in April 2015. The methodology used is descriptive-analytic, through literature, legislative and documentary research, adopting the theoretical basis of Alexy’s Theory of Fundamental Rights. Finally, it is suggested that the recognition of the right to informational self-determination is a possible solution to the problem of balancing. It is concluded that the proposed solution respects to the greatest extent possible the principles in collision, limiting them only where needed, as the result of a responsible and rational balancing.