The Federal Supreme Court (STF) will resume next Thursday (25) the judgment of the accountability of social media About User Posts. THE most ministers have already voted in favor of liabilitybut still lacks in detail the measures that will guide this application.
This is because, although seven magistrates voted in favor and only one against (more details below), they diverged in the proposals related to how the responsible digital platforms should proceed in case of criminal posts.
Currently, companies are only responsible if they do not remove criminal content after court order.
STF resumes judgment on accountability of social networks
The Court analyzes the constitutionality of Article 19 of the Internet Civil Mark, a norm that establishes the rights and duties for the use of the Internet in Brazil. It is a kind of internet constitution.
The Supreme Court reached 7 × 1 in favor of accountability of social networks for user posts. Dias Toffoli, Luiz Fux, Flávio Dino, Cristiano Zanin, Gilmar Mendes, Alexandre de Moraes and the President of the Court, Luis Roberto Barroso, voted in favor. Only Minister André Mendonça voted against. You find the details about each other’s vote below.
Currently, platforms can only be liable civilly if they do not remove illicit content after court order. These contents involve hate, fake news or third party loss. The STF’s decision is in favor of change, with direct accountability.
The resumption of the trial will be marked by the votes of ministers Edson Fachin, Nunes Marques and Cármen Lúcia. The Court should also consensis on the regime of applying the measures of liability by companies. That is: in what form and under what conditions they should respond and repair damage caused by posts considered criminal.
What each minister voted
Toffoli Days
Toffoli was a rapporteur of one of the resources and voted for unconstitutionality of the article, arguing that, in cases of offensive or illicit content, such as racismthe platforms need to act as soon as they are notified in a extrajudicialwhether by the victim, or by his lawyer, dispensing the need to wait for a court decision.
In serious situations, the minister understands that social media must take the same attitude and that, if they omit, need to be held responsible.
Luiz Fux
Fux was the rapporteur of the other process and had the same understanding From Toffoli, in addition to arguing that the removal of irregular posts should be performed shortly after extrajudicial communication.
The minister considers illicit contents that convene discourse of hatred, racism, pedophilia, incitement to violence, apology for the violent abolition of the Democratic Rule of Law and the coup d’état.
Fux still waved to account for social networks if they remain inert after extrajudicial notification and argued that platforms create channels for receiving confidential complaints and actively monitor the publications.
LUÍS ROBERTO BARROSO
The president of the Supreme Court understands that liability can occur when companies do not take necessary steps to remove these publications.
In cases of crimes against honorsuch as injury, slander and defamation, Barroso thinks that the removal of the harmful post should only occur through court order.
The minister also proposed that the companies have duty of careneeding to avoid content, such as: child pornography, instigation or assistance to suicide, trafficking in persons, acts of terrorism, violent abolition of the democratic rule of law and coup d’état.
André Mendonça
Unique oppositeMendonça understands that Article 19 is constitutional and Diverged at other points. But stated that it takes interpret the excerpt according to the Constitution to fix certain points.
One of them is what invalidates removal or suspension of user profiles, except in case of proven false or with illicit activity, and the platforms in general have the duty to promote the identification of the user violating the right of third parties and that It is not possible to hold responsible directly to the social network without prior court decision when there are possible irregularities involving opinions.
Flávio Dino
Suggested thesis that provides for the accountability of internet providers via Article 21 from Marco. This article says that responsibility can occur when There is no arrangements To remove content after extrajudicial notification. If there is a crime against honor, Article 19 prevails.
For Dino, the platforms have the duty of avoid the creation of false profiles. In this situation, the responsibility of the Civil Procedure CodeSpeaking independent of prior judicial or extrajudicial notification.
The decision would also apply to profiles of robots, paid and driven ads. If the provider removes the content due to care, the author can Ask for release in courtwhich, if authorized the post, There will be no punishment with compensation.
Cristiano Zanin
Last to vote, Zanin understands that Article 19 of Marco is “partially unconstitutional”And defends three criteria. One of them says that, in cases of criminal content, the platform would be held responsible by removing the content And without having to wait by court decision.
As for the application of Article 19, this would only be kept on providers unlucky there reasonable doubt on the lawfulness of the content, therefore, There would be no immediate accountability if there were doubt on the legality of the reported content.
Gilmar Mendes
In his vote, Mendes acknowledged the need to overcome the current model of accountability of social networks, which has already been outdated and ignores the active performance of companies for the content.
The minister proposed four options to blame the platforms, depending on the severity of the publication (for example, in cases of sponsored contempted) and the company’s degree of interference. He argued that the National Data Protection Authority (ANPD) is the inspector.
Alexandre de Moraes
Moraes was the seventh in favor of liability. He compared digital platforms to communication vehicles and argued that they have the same legal obligations to air.
The minister also questioned an alleged “absolute freedom of expression” that would be ignoring the presence of criminal content (such as racists, with apologies to state and anti -Semitic blows ”on social networks.
He also pointed out that the issue is not to limit freedom of expression, but to control the abuses committed under this pretext. That is, “liability for criminal abuse of expression”.
Read more:
Google: Accountability of social networks does not solve the problem
For Google, accountability will not contribute to the end of the circulation of unwanted content on the Internet. THE Digital Look gave the details here.
