Online content regulation in Brazil faces risk of setback

In Brazil, the operative intermediary liability system risks being invalidated, as the country’s Supreme Court should rule on its constitutionality this week. Associated HIIG researcher Clara Iglesias Keller argues that, regardless of the limits of the elected court centric approach, this could be a setback for the national online content regulation framework.

This week, the Brazilian Supreme Court will decide on the constitutionality of the country’s intermediary liability system, provided by art. 19 of the Marco Civil da Internet (Law 12.965/14). The appeal RE 1.037.396/SP questions a decision from the Civil Appeal Panel of the City of Piracicaba, which ordered Facebook to pay damages for not deleting a fake profile created on behalf of the plaintiff, after having been privately notified to do so.

According to article 19 of the Marco Civil, intermediaries can only be held liable for third party harmful content if they fail to take it down in the face of a judicial decision. This was a regulatory choice taken in the context of the Marco Civil, and it applies to all sorts of content, except copyright and non-consensual sharing of intimate images. Its main implication is that private notifications of any sort – and therefore, knowledge of possible infringement – are not enough to generate a compensation duty for platforms. Thus, the quarrel presented to the Supreme Court questions the very essence of the liability system elected by the Brazilian regulator.

Intermediate liability systems are legal arrangements implemented in many countries, the purpose of which is to establish limits within which internet platforms may be held responsible in the event of infringement by their users. The controversy presented to the Supreme Court is about the legitimacy of this choice of the Brazilian legislator before the constitutional right to indemnity in case of moral damage (art. 5, V and X of the Constitution). A series of analysis published in the past month have unraveled this conflict between moral rights, honor, image and freedom of expression, pending for the defense or unconstitutionality of art. 19.
Despite the importance of the civil liability discussion, it is a mistake to treat this trial from this single perspective. Intermediary liability systems are one of the central issues of online content regulation, and there are relevant regulatory implications to possibly invalidating such a central provision.

Importance and context of article 19

The online intermediary liability regime currently implemented in Brazil is provided by the “Marco Civil da Internet”. After several years of debate in Congress that involved a broad range of political actors, the Marco Civil’s approval provided legal certainty to a series of political and legal disputes surrounding Internet regulation, and “was praised internationally as a model legislation for the protection of freedom of expression and other human rights”.

Regarding intermediary liability, it introduced in sections 18 to 21 the first legal regime known to Brazilian legislation, based on judicial review. As stated by article 19,
In order to ensure freedom of expression and to prevent censorship, the internet application provider may only be held liable for damages from content generated by third parties if, after a specific court order, it does not take steps to, within the scope and within the technical limits of its service and within reasonable time, make unavailable the content indicated as infringing, except as otherwise provided by law.

Before this rule came into force, the scenario was one of legal uncertainty and diffuse jurisprudence, which gave room for disproportionate measures both by the public power – mostly through adjudication – and private companies. As the complexity and scope of the platform-based economy grew in Brazil – together with the risks enhanced by legal uncertainty -, this discussion became one of the main inputs for the Marco Civil’s drafting and incentive to its approval.

Overall, the elected approach has been celebrated for its privilege of freedom of expression, in the sense that requiring a judicial decision as prerequisite for liability would give fewer incentives for platforms to overblock content. In an opposite sense, a full liability regime (where material reparation could be due upon mere extrajudicial notification) would encourage private monitoring and the exclusion of potentially controversial material, which bears wide risks for limiting legitimate content.

As it happens with policy fields that are highly influenced by judicialization, one can find a few limitations of the Marco Civil’s court centric rule. However, declaring its unconstitutionality would be a setback for the Brazilian online content regulation landscape.

The risks of an “unconstitutionality” declaration

In the complex regulatory matrix applicable to online content, intermediary liability systems play a central role as one of the most common and influencing state-based policies towards internet platforms. From a regulatory perspective, they function as “model[s] for contextual regulation” that, instead of directly prohibiting a specific behaviour, set a series of “conditions under which the operator will be liable for third party content” .

In this regard, they directly affect intermediaries’ internal policies and guidelines, shaping the way a diversity of user uploaded content is made available at the online environment. Ultimately, they influence the design of pivotal online policy fields, addressing matters related to copyright, the right to be forgotten and online terrorism, among others. 

It must be highlighted that this rule is the only public authority scrutiny over online content provided by Brazilian legislation. Unlike other legal systems, Brazil did not implement alternative regulatory mechanisms that could stir online content governance in the public interest. There are no structural supervision mechanisms, like the ones implemented in Germany, or any due process alike pre-removal procedures bound to legislation, as it happens in Canada.

While this can be seen as a reason for criticism of art. 19 of Marco Civil, it is also a symbol of how important this provision is. Apart from judicial action, there is no institutionalised way to assess these content regulation and control activities exercised by internet platforms. Invalidating this rule would also remove the minimum legal certainty that users and private agents can currently rely on and would re-establish a scenario of diffuse jurisprudence.

Moreover, a possible declaration of unconstitutionality would relegate to the private actors all decisions regarding the user’s freedom of expression. Given the risks of financial liability for infringement of open third parties, incentives could possibly move towards blocking and withdrawing excess content.

There is certainly room for the Brazilian experience to move towards more democratic online content management. However, the declaration of unconstitutionality of art. March 19 may be a step backwards.

About the author

Clara Iglesias Keller is a fellow at the Leibniz Institute for Media Research | Hans-Bredow-Institut from October 2019 to April 2020, where she is further developing her research on regulatory strategies towards disinformation.