Proteção integral de crianças e adolescentes na era digital: a internalização do dever de cuidado através do legal design

Abstract

This research analyzes the full protection of children and adolescents in the digital age. It starts from the problem that the traditional legal paradigm, focused on content moderation, is insufficient to mitigate the systemic risks generated by the platforms own architecture. This work investigates this architecture, founded on surveillance capitalism, by Shoshana Zuboff, which uses addiction engineering, by Max Fisher, to modulate child behavior. The general objective is to analyze the transition of the Brazilian legal system from a reactive model to a regime of preventive duty of care, and, specifically, to propose the Legal Design methodology, by Margaret Hagan, as the indispensable operational instrument for the effective internalization of the new duties of Safety by Design. The methodological approach used is the hypothetical-deductive, by Karl Popper. The research utilizes a bibliographic and documentary review. The first chapter diagnoses the society of control, by Gilles Deleuze, noting that the business model is based on neurobiological impacts. The second chapter maps the normative framework, starting with Article 227 of the Constitution and General Comment Number 25. Faced with the preliminary finding that child protection is affected by the insufficiency of the reactive legal paradigm focused on content, the research analyzes two theoretical conceptions of regulation: regulation focused on content moderation, the main approach of the Marco Civil da Internet; and regulation focused on design and architecture, advocated by UN General Comment Number 25. It verifies that the two investigated conceptions respond differently to the problem of systemic risks. In light of the Doctrine of Full Protection and the Safety by Design approach, enacted in the ECA Digital, theoretical frameworks of this research, the working hypothesis is ratified. It is inferred that overcoming the reactive model is a normative imposition and that the Legal Design methodology is the indispensable instrument to internalize the preventive duty of care into the platforms own architecture.