Discriminação algorítmica : a aplicabilidade dos standards protetivos fixados pela corte interamericana de direitos humanos e pelo Supremo Tribunal Federal em relação ao direito de igualdade e não discriminação a partir das noções de Ius Constitutionale Commune latino-americano e dever de proteção estatal.

Abstract

The disruptive technological development observed since the beginning of the 21st century has as one of its main characteristics the high flow of data and the widespread use of algorithms in the most diverse computing devices. In the information society paradigm, the human being is always connected and interacts with several algorithms. This fact enabled the solution of complex problems, which human beings still could not solve alone, however, it brought new risks to humans and fundamental rights, such as algorithmic discrimination. It can be said that algorithmic discrimination consists of preventing access to certain rights, goods, or even services, through an automated decision, which may or may not be opaque. Legal sciences are expected to protect human and fundamental rights and new approaches may be needed to protect them. The duty of state protection stems from the dual dimensionality of fundamental rights, which requires the State to adopt a positive stance in the implementation of fundamental rights. About human rights, in Latin America, the idea of a Latin American Ius Constitutionale Commune arises, which has as one of its objectives to form minimum standards on human rights applicable in the region. Given this scenario, the following question arises: taking as a reference the notions of the Latin American Ius Constitutionale Commune and the duty of state protection, what are the protective standards established by the Inter-American Court of Human Rights and by the Federal Supreme Court about the right to equality and non-discrimination applicable and what is the possibility of its application in the face of algorithmic discrimination? The main objective is to verify the protective standards set by these two courts about the referred rights, as well as their possible applicability in the face of algorithmic discrimination. To do so, we first seek to conceptualize algorithmic discrimination, establishing a parallel between it and structural discrimination. In a second moment, the applicability will be verified, through the theories of the Latin American Ius Constitutionale Commune and the duty of state protection, of the protective standards established by the Inter-American Court of Human Rights and by the Federal Supreme Court. Finally, the minimum standards on the right to equality and non-discrimination applicable in the face of algorithmic discrimination will be analyzed. The hypothetical deductive method of approach was used, focusing on the jurisprudential analysis of the Inter-American Court of Human Rights and the Federal Supreme Court; the method of procedure is analytical, and the collection of decisions was made directly on the websites of the courts, using the keywords “right to equality”, “right to non discrimination”, “fundamental right to equality” and “fundamental right to non discrimination”, considering that the time frame of the decisions handed down by the Brazilian Court took place in 2000, while the decisions of the Inter-American Court were analyzed in their entirety. A bibliographic research technique was also used. This research is related to the line of Research of the Graduate Program stricto sensu in Law at the University of Santa Cruz do Sul, Contemporary Constitutionalism, as well as to the research carried out by the advisor and co-advisor professors. Given the analysis carried out, it can be affirmed the existence of minimum standards on the right to equality and non-discrimination is applicable in the face of algorithmic discrimination.