Constitutionality of Civil Rights Framework’s article 19: Intermediary Liability judicially reviewed by the Supreme Court of Brazil

The “Civil Rights Framework for Internet” (or “Marco Civil da Internet” – MCI, in Portuguese) asserted rights in Brazil in a pioneering way and with globally recognized importance. This does not exempt this legislation from questions about the validity of some of its predictions. A highly debated example is the intermediary liability regime established by it, especially the limitation of obligations imposed to application providers.

For June 22, 2022, the eve of the MCI’s eight-year term, there was an expectation of an important judgment on this topic by the Brazilian Supreme Federal Court (STF). However, the case was excluded from the trial calendar at the end of May, and so far there is no provision for a new inclusion on the agenda. Even so, the topic is timely.

What is at stake in this discussion? What theme, characters and possible consequences are involved in this judicial review? What has already been decided before and what are the possible paths for the Supreme Court?? And, finally, what can we expect from the future of civil liability of intermediaries in Brazil? 

The path of the process: from Capivari to STF

It is up to the Supreme Federal Court to examine the Extraordinary Appeal (RE) No. 1,037,396 and to declare whether or not Article 19 of the MCI is constitutional (Law No. 12,965 of 2014). The procedural documents available at the court’s website and the follow-up at the Court of Justice of Sao Paulo website allow us to narrate the path of this judicial process, understand what it is about and what exactly is at stake when it comes to civil liability of providers.

The Marco Civil had been sanctioned by President Dilma Rousseff on April 23, 2014, at the opening of the NETmundial event – ​​Global Multisectoral Meeting on the Future of Internet Governance. It took effect sixty days later, on June 23, 2014. 

On November 17 of that same year, a woman named  Lourdes Pavioto Correa, a resident of the city of Capivari, in São Paulo, filed a lawsuit against Facebook. She stated that she had learned from family members that a profile with her photos and her name was posing as her in publications that were offensive to other people, including to her sister. So, she asked a Civil Special Court to determine that the company delete the false profile, inform the IP used in the creation, and compensate for the damage caused to her honor and image.

When considering action 0006017-80.2014.8.26.0125, Judge Marcia Yoshie Ishikawa handed down the sentence on June 26, 2015. She accepted the two requests for deletion of the false profile and for delivery of the IP address, but did not accept the request for compensation for moral damage. Both Facebook and Lourdes appealed to the São Paulo Court of Justice. 

In December 2015, the 2nd Civil Appeals Panel of the Colégio Recursal de Piracicaba/SP, under rapporteurship of Judge Rogérios Sartori Astolphi, with participation of Maurício Habice and Gisela Ruffo, changed the result in two aspects. In favor of Facebook, it removed the obligation to provide the IP address used in the creation of the fake profile; and, in favor of the plaintiff, declared that art. 19 of the MCI is unconstitutional and condemned Facebook to pay compensation of ten thousand reais for moral damages, resulting from the failure to delete the false profile, after being warned of the irregularity.

Facebook, yet in 2016, appealed to the Supreme Federal Court, challenging the statement that art. 19 of Marco Civil was unconstitutional. The case was up sent in March 2017 and in March 2018 the Supreme Court, in line with the manifestation of the Rapporteur, Judge Dias Toffoli, which understood that the matter has general repercussion, while dealing with the “need for a prior and specific court order to exclude content for the civil liability of internet providers, websites and social media application managers for damages resulting from unlawful acts performed by third parties“, and established RE 1037396 as the central case of General Repercussion Theme nº 987.

Finally, on September 25, 2018, the Attorney General’s Office spoke in the case and defended the constitutionality of the provision:

“It does not offend art. 5th, X and XXXII, of the Federal Constitution, art. 19 of Law No. 12.965/2014 (Marco Civil da Internet), which conditions the non-compliance with a prior and specific court order to exclude content, the characterization of civil liability of the internet application provider for damages resulting from illicit acts performed by third parties.”

Limited providers liability: the rule stated in article 19 of MCI

The Civil Rights Framework for Internet established a new model for the intermediary liability regime, different from what had been outlined by the Superior Court of Justice jurisprudence First, it set a binary distinction between the types of service provider companies, defining a difference only between internet application providers and internet connection providers.

Connection providers operate in enabling a device to Internet usage, by assigning or authenticating an IP address, or in transmitting, switching or routing data packets. They are at the first three layers of the Internet, considering the TCP/IP standard: infrastructure, addressing and network.

Application providers, at the homonym layer, offer specific functionalities that fulfill the general possibilities of the Internet, that is, they apply the genericity of the network to specific utilities: ordering food, listening to music, searching, publishing short texts, sharing photos, watch series, find the best way, etc.

MCI is guided by a principle, inscribed in item VI of art. 3rd: each agent is responsible in line with their activities. Thus, art. 18 of the law establishes a full disclaimer for connection providers in relation to customer-generated content. As for the second, art. 19 establishes as a rule a liability limitation for application providers, who should only be held accountable for damages resulting from third-party content if they refuse to comply with a court order:

Art. 19. In order to ensure freedom of expression and prevent censorship, the internet application provider can only be held civilly liable for damages resulting from content generated by third parties if, after a specific court order, it does not take steps to, within the scope of and within the technical limits of its service and within the period indicated, make the content identified as infringing unavailable, except for the legal provisions to the contrary.

It should be noted that this MCI rule has two exceptions: copyright and exploitation of private intimate images. The first, provided for in § 2nd of art. 19, has its own legal discipline in the Copyright Law (nº 9,610, of 1998), which was under intense debate in the first decade of the 21st century, but remains practically unchanged nowadays. The second exception, provided for in art. 21 of the MCI, resulted from the social commotion in face of the suicide of two adolescents who had had their intimacies exposed.

Returning to Lourdes Pavioto Correa case, it is important to overturn a persistent false argument, also, because it was alleged by Facebook in its defense. Since receiving the extrajudicial notification sent by Lourdes, the company claims that, without a court order, it could not delete the profile pointed out as false.

The Marco Civil da Internet does not prevent application providers from content moderation. The law only limits the requirement of an obligation to the moment after the judicial decision, but does not establish any prohibition. Therefore, in terms of civil law, this absence of prohibition implies authorization. That is, companies are free to, if they wish, moderate or not the content of third parties published on their networks. And in the event of incurring any abuse or mistake, they are subject to civil liability.

The Constitution and the Civil Rights Framework: the importance of an society-STF open dialogue 

This is not the first time that the Supreme Court has addressed the relationship between law and internet. In 2016, after WhatsApp was blocked in Brazil for failure to comply with judicial orders of interception, the Court received two actions that discuss the measures constitutionality, whose judgment has been awaiting a return of view since May 2020. In Direct Action of Unconstitutionality (ADI) No. 5527, the validity of items III and IV of article 12 of the MCI, indicated in one of the court orders as grounds for blocking, is questioned.

And even before the approval of Marco Civil, in 2011, a conflict had reached the Supreme Court over Google’s duties regarding the supervision of an Orkut community created by students from the city Belo Horizonte to illspeak of a teacher. Extraordinary Appeal 1,057,258 (formerly ARE 660861) will be judged in view of General Repercussion Theme nº 533, which discusses the need for Judicial intervention as a requirement for holding application providers accountable for user-generated content.

Returning to the specific case of art. 19, the topic gains traction with the intense public debate on regulation of online platforms, in the context of combating disinformation, hate speech and other forms of harmful online content. In order to capture the different perspectives on the issue, the Supreme Court admitted six amici curiae in the process: they are consumer rights defense institutes, technology companies, and human rights organizations that, even though they are not parties to the process, will have space to voice their concerns. All “court friends” have already presented their wroten arguments, and will still have a few minutes of oral statements during the trial sessions. But this is not enough, considering not only the technical complexity of the topic, but also its enormous public relevance.

In mid-2019, the judgment of RE 1037396 (TRG 987) was scheduled for December 4th of that year, but was suspended precisely to hold a public hearing, in order to receive more subsidies for its decision, scheduled for the 23rd and 24th, March 2020. But on the eve of those days, the event was canceled by the Rapporteur, Judge Dias Toffoli, due to the COVID-19 pandemic. After the emergency situation became less serious, at the end of 2021, the STF had included the case in the judgment agenda of June 22, 2022, but it ended up being withdrawn once again from the agenda at the end of May. In this scenario, it remains crucial for a good decision that the STF listen to the many views on the subject, and be open to society’s manifestations.

The possibility of the trial taking place without this public hearing would be a serious risk, and it worries experts and activists. It is worth noting that the Brazilian experience in internet governance is a world reference both for its technical quality and for its plural and democratic character. Thus, any decision, administrative, legislative or judicial, that impacts such an ecosystem should also be widely debated, ensuring that the interests of the various social sectors affected are heard and considered.

What will the future bring?

The debate on article 19 constitutionality will certainly continue to be one of the most relevant topics of the internet governance agenda in Brazil in the coming months and years, regardless of the outcome of the judgment. This year, the approach of the electoral period will intensify the discussion about the role of intermediaries and about the most appropriate regulatory model to promote the balance between freedom of expression and the fight against illicit in the network. But the issues go beyond the theme of electoral law, and will certainly have new nuances and bring new controversies. That is why a decision by the STF now matters so much: it will dictate the constitutional bases for interpreting the discipline of the Civil Rights Framework for Internet.

The best path to a fair and adequate decision to the technological reality, increasingly, involves respecting the parameters and basic characteristic values ​​of democracy, including the principles for governance and use of the internet in Brazil, such as participatory and collaborative governance and the non-imputability of the network. When actually starting the judgment of RE 1037396 (TRG 987), the fulfillment of the institutional role of the STF demands to seek multisectoral and interdisciplinary contributions. This is the only way to understand the full dimension of the effects of any change in the model established by MCI. In this sense, the value of the public hearing would be inestimable.