BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

Robert Alexy’s “ rule of proportionality ” 17 states that “ the greater the degree of non- satisfaction or violation of one principle, the greater must be the importance of the other .” Wilson Steinmetz 18 points out that its application goes through three stages: measuring the degree of non-satisfaction of a principle; assessment of the importance of the opposite principle realization; demonstration that the importance of the opposite principle justifies the non-realization of the restricted principle. The employee’s fundamental right to privacy is also very important and must be made compatible with other Republican values. There is no dogmatic justification for not honoring it. It should also be remembered that the restriction of fundamental rights through proportionality is not something exclusively applied by the Judiciary Power. The Legislative Power, in its typical function, also uses it when it regulates the Constitution, defining with rules the extension of the intervention in certain fundamental rights. By editing Law n. 12.527 / 2001, known as the “Access to Information Law”, with the declared purpose of regulating item XXXIII of article 5 of the CRFB, the legislator imposed on public agencies the obligation to “ ensure the protection of personal information ”, in addition to establish that “The processing of personal information must be done in a transparent manner and with respect to privacy, private life, honor and image of people, as well as individual freedoms and guarantees” (article 31). Furthermore, none of the rules established in such diploma mentions the need for nominal disclosure of the remuneration of the employees, as Judge Teori Zavascki himself acknowledged in his vote in RE 652.777. Neither in the Decree n. 7,724 / 2012, which regulated the law in the scope of the Federal Executive, this prediction is mentioned, but rather the “individualized” disclosure, which cannot be confused with the “nominal” one (article 7, § 3, VI). The Federal Constitution itself, in its article 39, paragraph 6, established the need for annual disclosure of the subsidies and remuneration of public posts and jobs, without providing a nominal indication of beneficiaries. The protection of the privacy of the public servant against such exposure is necessary, it is not an attempt to conceal undue advantages or frustrate the social control of the Administration. It cannot be forgotten that the measure legitimized by the FSC wants the exposure not only of political agents or high-ranking officials, supported by strong institutional security and often do not even depend on the subsidy or salaries. Because, as Mario Vargas Llosa warns in “ The Civilization of Entertainment ”: […] there is no more effective way to entertain and amuse than to feed the low passions of the ordinary of mortals. Among these, the most intimate is the revelation of the intimacy of the neighbor, especially if it is a public, known and prestigious figure. This is a sport that journalism today practices unscrupulously, supported by the right to freedom of information.Although there are laws about it and some-rare-times there are lawsuits and court sentences that penalize excesses, it is an increasingly widespread custom that has actually made privacy disappear in our time, all secrets of the life of 17 ALEXY, R.: Fundamental Rights Theory . 2 ed.São Paulo: Malheiros Editores, 2012, p. 169. 18 STEINMETZ, W.: Principle of proportionality and acts of private autonomy restricting fundamental rights. In : Virgílio Afonso da Silva (Org.), Constitutional Interpretation . 1. ed. 3. tir., São Paulo: Malheiros Editores, 2010, p. 42.

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