The Federal Supreme Court (STF) ruled on Thursday new rules on the accountability of social networks for published content. It was defined that the platforms have a duty to remove illicit content after being notified of them, but an exception was established for the crimes against honor.
By majority vote, the ministers have decided that Article 19 of the Internet Civil Marco is partially unconstitutional. This article determines that the platforms are only responsible for damages arising from content published by third parties if they fail to comply with a court decision to withdraw from the publication. Now this understanding is worth only for crimes against honor.
– We predict cases where private notification is enough when there is a crime or illicit act. In these hypotheses, private notification is enough to generate the duty of the platform to remove the content. In the other cases, there is still to demand court order-explained the president of the Supreme Court, Luís Roberto Barroso.
The ministers have decided that Article 19 “does not give sufficient protection” to fundamental rights and, therefore, “must be interpreted so that internet application providers are subject to civil liability.”
The decision was made by eight votes to three, with the disagreements of André Mendonça, Edson Fachin and Nunes Marques. The ministers held a lunch on Thursday, which lasted about four hours, to reach an intermediate position in the thesis.
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A “presumption of responsibility” of the platforms in relation to illicit content displayed in advertisements and paid driving was established.
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There may be accountability even without extrajudicial notification, but providers are exempt from punishment “if they prove that they have acted diligently and in reasonable time to make content unavailable.”
Duty of care
The so -called “duty of care” in relation to serious criminal content was also determined. Social networks must act to prevent the circulation of undemocratic conduct and acts, terrorism, instigation to suicide and discrimination by race, color, ethnicity, religion, national origin, sexuality or gender identity.
Platforms can be held responsible if a “systemic failure” occurs in relation to these contents, not by isolated publications.
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– In addition to cases of court order and private notification, there are the cases we refer to as a duty of care. These are those topics that the platform must take care of so that they even reach the public space. The algorithm has to be programmed to avoid – said Barroso.
The decision was made in two cases, reported by Dias Toffoli and Luiz Fux. The rapporteurs had proposed that Article 19 be declared entirely unconstitutional, and were accompanied by Alexandre de Moraes.
However, the intermediate position prevailed, negotiated at lunch this Thursday, of unconstitutionality only partial.
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This position was initially presented by Barroso and followed, with variations, by Gilmar Mendes, Cristiano Zanin, Flávio Dino and Cármen Lúcia.
