Brazil's Supreme Court suspends trial on holding social media networks accountable for posts deemed illegal.
The Court has a score of 8 to 2 votes in favor of accountability
André Richter - Reporter for Agência Brasil
The Federal Supreme Court (STF) suspended this Wednesday (25) the trial on the civil liability of platforms that operate social networks for illegal posts made by their users.
The trial was suspended so that the ministers could discuss the final thesis with the details of the decision. The thesis is necessary to establish the rules that the platforms must follow to remove posts with anti-democratic content, messages with hate speech and personal offenses, among others.
According to the president of the Supreme Court, Minister Luís Roberto Barroso, the ministers will discuss the final text of the thesis internally. If there is an agreement, the result of the trial will be announced this Thursday (26). Minister Nunes Marques will still deliver the final vote of the trial.
So far, the Court has a score of 8 votes to 2 for the unconstitutionality of Article 19 of the Internet Civil Rights Framework (Law 12.965/2014), a law that established the rights and duties for the use of the internet in Brazil.
According to the provision, "with the aim of ensuring freedom of expression and preventing censorship", platforms can only be held responsible for their users' posts if, after a court order, they do not take steps to remove the illegal content.
Votes
The trial began on June 4th and has already lasted five consecutive sessions. Earlier, in the first part of the session, the minister... Edson Fachin voted against holding the networks directly responsible. Cármen Lúcia followed the majority in holding people accountable..
In previous sessions, ministers Flávio Dino and Alexandre de Moraes voted in favor of the civil liability of platforms that operate social networks. According to Moraes, big tech companies impose their "aggressive" business model without respecting Brazilian laws and cannot be a "lawless land." Dino's understanding is that internet application providers can be held civilly liable for damages resulting from content generated by third parties.
Gilmar Mendes considered that Article 19 is "outdated" and that the regulation of social networks does not represent a threat to freedom of expression. Cristiano Zanin voted for the unconstitutionality of the article and stated that the provision is not adequate to protect fundamental rights and imposes on users the burden of taking legal action in the event of offensive and illegal posts.
Ministers Luiz Fux and Dias Toffoli voted to allow the deletion of illegal posts through extrajudicial notifications, that is, by the affected parties themselves, without a prior judicial decision.
Luís Roberto Barroso says that a court order is necessary to remove only posts that commit crimes against honor (slander, defamation and insult). In other cases, such as anti-democratic and terrorism-related publications, for example, an extrajudicial notification is sufficient to remove content, but it is up to the networks to exercise due care in assessing whether messages are in disagreement with the publication policies.
André Mendonça voted in favor of maintaining the current rules that prevent networks from being held directly liable.
Tried cases
The STF is judging two specific cases involving the Internet Civil Rights Framework that reached the Court through appeals.
In the case reported by Justice Dias Toffoli, the court is judging the validity of the rule that requires a prior court order to hold providers liable for unlawful acts. The case involves an appeal by Facebook to overturn a court decision that found the platform liable for moral damages for creating a fake user profile.
In the case reported by Justice Luiz Fux, the Supreme Federal Court is discussing whether a company that hosts a website should monitor offensive content and remove it without judicial intervention. The appeal was filed by Google.
