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This Paper Was Written by Seiiti Arata Junior in December 2004 For Background: This paper was written by Seiiti Arata Junior in December 2004 for a book coordinated by the law firm Barretto Ferreira, Kujawski, Brancher e Gonçalves – Sociedade de Advogados. The project for the book was later cancelled. The paper was then updated in February 2005 and subsequently submitted to publication together with other papers on intellectual property and, after a long process, was published by Editora Campus/Elsevier (2007) in the book “Propriedade Intelectual – Novos paradigmas internacionais, conflitos e desafios”. In the meantime, an adaptation of this paper focusing on privacy, entitled “Novos desafios à privacidade: os círculos sociais e as redes sociais (social networks)” (“New challenges to privacy: social circles and social networks”), was published in Revista de Saúde, Ética e Justiça da USP 2003 (“Public health, Ethics and Justice Magazine of São Paulo University”) year 2003 (printing year 2004). In 2004, Orkut was one of the rising social network services and the Brazilian market was competitive and uncertain. There were no records of lawsuits involving Orkut at that time. Accordingly, this paper presents a neutral approach towards social networks in general. Technological and legal regulation of online social networks Seiiti Arata Junior Introduction Online social networks received a remarkable acceptance in the Brazilian market from the year 2004 on. This paper presents brief observations on the relationship between the technological structure and its terms of use, along with the legal effects, focusing on themes such as database protection, privacy, personality rights of the person’s image and consumer protection. As opposed to previous methods of using digital communication media, social networks aggregate a critical mass of users in multiple dimensions in such a way that the potential for abuse is heightened. To explore such premise, this paper is divided into two sections: (i) a multidisciplinary introduction exploring sociology, psychology and general theory of law, and (ii) application of legal institutions to the identified scenario. Part I is necessary to circumscribe the novelty aspects that would justify a specific study for online social networks, especially considering the lack of literature on the theme at the time that this paper was written. It is not the intention of this paper to exhaust the rich discussions surrounding the theme. Rather, it aims to demonstrate the need to balance technology, values and law when offering or joining an online social network service. As this is still an unexplored issue, this paper will use analogy to similar activities and will also refer to technical terms and expressions. To facilitate the reading of those already familiar with such technical terminology, the explanation of these terms will be made by footnotes. Section I – Introduction to the social networks The dramaturgic persona The Latin word persona, composed of the prefix per (through) and the suffix sono (sound), was originally used as a reference to the mask used by actors in theater presentations. In Vocabulário Jurídico (“Legal Vocabulary”), De Placido e Silva observes the connection between persona and the expression dramatis personae, a reference to the representatives or dramatic characters, i.e. the actors themselves1. This etymologic analysis shows a theatrical notion related to the idea of the human person, which is constantly explored in the arts and human sciences. With a historical evolution 1 The Romans made use of the word persona as a general meaning for human being, independently of his status as a natural person, a holder of rights, or his condition as a slave, an object of rights. approach to the concept of human person, Fábio Konder Comparato2 identifies stoicism as the first landmark in the theorization of the concept of the person, in which the theatrical persona (the role played by individuals in social relations) is separate from the individual essence of each human being (which is then called personality), so that the dramatic role each of us represents in life shall not be confused with the personal individuality. The dramaturgic concept of persona is also addressed in The Presentation of Self in Everyday Life3 of the Canadian sociologist Ervin Goffman, who argues that when an individual is in the presence of others, these others try to obtain information about him and also bring to the discussion elements of information they may already have about him. The interaction is understood as a performance shaped according to the audience and social environment whose script will try to transmit information in coherence with the objectives of the actors. The performance is independent of the mental state of the individual so that the theatrical persona manifests regardless of a conscious desire to perform. Briefly, the necessary information for the performance can be obtained in two ways: (i) expressly verbalized and intentional and (ii) contextualized, non-verbalized and non- intentional. The individual seeks control over the behavior of others regarding himself; this control is obtained by a shift in his own behavior aiming to transmit a specific impression that would make others act according to his plans and also to present an idealized version of himself which is more consistent with social norms, compared to his behavior when not in front of an audience. This use of the persona as a mask defines the stage of a play with infinite acts of false revelations and elusions until a certain consensus is reached. Performances inevitably suffer the effect of audience segregation, so that specific performances are made for specific audiences, according to their expectations. Spontaneity in this process is a fundamental element to avoid transmission of an artificial impression in the behavior. Living in truth: multiplicity of opinions Goffman recognizes that there are many cultural differences in the manifestation of the self. His study identifies that members of an Anglo-American culture tend to have a secluded social lifestyle, interacting in determined environments, keeping strangers at a certain distance, giving actors a certain freedom to perform their show and, in general, sharing a serious concern and union about common civic dramas. Cultural studies such as the one made by Goffman were performed in different contexts and places; in Brazil the magisterial study of the Brazilian people made by Sérgio Buarque de Holanda, Raízes do Brasil (“Brazilian Roots”) deserves to be highlighted by presenting the concept of the “homem cordial” (“cordial man”), whose intimacy designates an indistinctness between the public and the private and everybody are friends everywhere4. 2 Comparato (2003), p. 16. 3 This work, though valuable, does not present a complete description of the interactive process. The nature of marginalized individuals, the importance of ritual and ceremonies in dramaturgy and in the construction of characters is improved in later works of Goffman, such as Stigma and Interaction Ritual. 4 The ideas of Sérgio Buarque de Holanda also contribute to the understanding of the great success of social software among Brazilians, such as photologs and social networks, whose statistics demonstrate that Brazil is However, notwithstanding these behaviors generally shared in a specific collectivity, there is a multiplicity of opinions that individuals can take before the question of how to be spontaneous and genuine. Addressing the issue of the difficulty of sharing opinions and even reaching mutual understanding when people’s lives are well defined and structured based on different experiences is clearly illustrated in The Unbearable Lightness of Being, among so many other masterpieces of literature. Milan Kundera dedicates the third part of his masterpiece to The misunderstood words between Sabina and Franz, elaborating a lexicon of opposite notions on different issues, among which publicity and privacy are thus considered: “LIVING IN TRUTH Is a formula Kafka used in his journal or in a letter. Franz does not remember very well. He is seduced by this formula. What is living in truth? A negative definition is easy: is not lying, not hiding, and not dissimulating anything. Since he met Sabine, he lives in lie. Talks to his wife about congresses in Amsterdam and conferences in Madrid that never happened, is afraid of walking the streets of Geneva with Sabine. He thinks lying and hiding is fun, just because he never did it before. He feels the pleasure of the first one in his classroom who, one day, decides to cut classes. To Sabine, living in truth, not lying at oneself or at others, is only possible if one lives without a public. By having one single witness of our acts, we adapt ourselves in one way or another to the eyes of the observers, and nothing else we do is true anymore. Having a public, thinking in a public, is to live in lie. Sabine despises the literature in which the author reveals all his intimacy and also the one of his friends. He who loses his intimacy loses everything, thinks Sabine. And the one who consciously renounces to it is a monster. Because of that, Sabine does not suffer for having to hide her love. On the contrary, to her this is the only way to live ‘in truth’. As for Franz, he is convinced that the source of all lies is in the separation of life in the private and public domain: we are one person privately and another person in public. To Franz, to live ‘in truth’ is to abolish the barrier between public and private. He mentioned with delight the phrase from André Breton who said he would like to live in ‘a glass house’ where nothing is secret and is open to all eyes”5. a leader with an impressive number of subscribed users. The cultural examination also explains the lesser concern of the Brazilian legal system regarding issues such as privacy and freedom of expression, which are of greater importance in the United States of America.
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