With the approach of the trial at the Federal Supreme Court (STF) that could disfigure the protection given to freedom of expression by the Marco Civil da Internet, several jurists were mobilized to defend, together with ministers, the constitutionality of the law and argue that possible changes to the rules they should come from the Legislature, not from the Court’s interpretation.
The start of the trial of two actions that question the validity of article 19 of the Marco Civil da Internet, according to which social networks can only be held responsible for offensive or harmful content posted by users is scheduled for next Wednesday (27). fail to comply with a court order of removal. The rule was the result of broad debate at the time the law was published, in 2014, and aims to prevent censorship on platforms.
This section of the Marco Civil da Internet prevents anyone who feels offended by a post from pressuring the social network to take it down through a direct notification to the platform. It would be up to the Judiciary to assess the illegality of the content and determine its removal. If direct notification from the affected party were sufficient, there would be an incentive for technology companies to remove any legitimate and lawful criticism to avoid lawsuits and compensation payments.
There are two exceptions provided for in the law itself: in case of violation of privacy, with posts of nudity or sex without authorization from the person involved; and when any content violates copyright. In these cases, the network is obliged to delete the material as soon as notified.
Changes must be discussed in Congress, warn jurists
The ministers will now discuss whether to open, via court, more exceptions to the general rule. It is considered including the obligation to immediately remove pornography and sexual exploitation of children, incitement to terrorism, discrimination and racism, and encouragement of crimes against democracy.
The concern of several jurists is about the terms under which this will be established by the STF, especially if ministers decide that there is also an obligation to remove content from open and subjective categories, such as hate speech and disinformation. The risk is that, to avoid lawsuits and punishments, platforms will remove any and all posts that may be marked in this way, even if without reason and improperly.
In statements sent to the STF, they defended that exceptions be added to the Internet Civil Framework itself, such as cases of privacy and copyright violations, through a law approved in Congress, and not through interpretation by the Court. Senate lawyers were some of those who defended such a solution.
“It is true that the circulation of ideas, notably on digital platforms, can have its regulation improved, notably to curb the abusive exercise of freedom of expression, but it is important that this debate takes place in the plural and representative space of Parliament, in order to that the different constitutionally possible paths be considered for an adequate solution to the matter”, says the Senate statement, signed by lawyers Luiza Deretti Martins, Ana Cristina Diógenes Rêgo Cordeiro and Gabrielle Tatith Pereira.
Entities representing the technology sector also spoke to the STF, not only in favor of the constitutionality of the Marco Civil da Internet. They also argued that the rule was the subject of broad and in-depth debate with society and an appropriate solution was reached. The law provides, for example, that offensive content can be removed quickly, following a request to a special court. Furthermore, it does not prevent, on their own initiative, platforms from removing publications that contradict their terms of use, which already covers the majority of content that is unequivocally illicit and harmful.
The Brazilian Chamber of the Digital Economy, which represents various sectors of the digital economy, recalled that the Marco Civil da Internet began to be drawn up in 2009 by the government and Fundação Getúlio Vargas. During its progress in Congress, it received thousands of suggestions for improvement, with the part relating to the accountability of digital platforms being the most debated. He argued that the fight against false information and offensive content must be supported by law, but does not exclude other means.
“The dissemination of false information and offensive content is, without a doubt, a relevant and contemporary challenge, but it is an intrinsically complex and multifaceted issue. The solution requires a coordinated set of legislative, educational, technological and institutional measures, not limited to the liability regime provided for in the Marco Civil da Internet or an isolated judicial decision”, says the entity. The statement is signed by lawyers Igor Luna, Luísa Sottili and Rafaela Braga.
Chamber shelved proposal that opened room for censorship
STF ministers have defended the judgment of the Marco Civil da Internet for some years. The Court has been postponing this decision because it expected new regulations to come from Congress. Last year, the most comprehensive proposal on the subject, Bill 2630/2020, was discussed in the Chamber, but was withdrawn from the vote due to the high risk of rejection – technology companies warned that it also favored private censorship .
The text established the “duty of care” of platforms in relation to harmful content. They would therefore be obliged to account for all the measures they adopt to curb illegal manifestations, as well as increase transparency regarding their recommendation and content targeting systems. Reports should be submitted to a state regulatory body, which would oversee content moderation and could apply sanctions. This is a more complex model, inspired by the most recent European Union legislation.
Law cannot be overturned because ministers consider it bad, lawyers say
Jurists who defend the Marco Civil da Internet say that Brazilian law is more appropriate because it delegates to the Judiciary the analysis of content in which there is controversy about its legality, instead of leaving this task to the platforms themselves or to individuals. If it is decided to open new exceptions to the court decision rule, it would be a case of adding them to the law, for content that is unequivocally illegal and easily assessed, such as child pornography.
“Increasing the list of exceptions for content whose illegality is objective – and which, therefore, must be removed without the need for a court order – is something that can be thought about and discussed carefully, as long as clear criteria are jointly created – and the best place That’s what the National Congress is for,” the São Paulo Lawyers Institute told the STF, in a piece signed by its president, Renato de Mello Jorge Silveira, and director Thiago Rodovalho.
At the request of technology companies, renowned jurists and professors also defended the constitutionality of the Marco Civil da Internet before the STF. They argued that a law cannot be overturned by the Court just because ministers consider it bad. In this case, legislative improvement is necessary, but not a declaration of unconstitutionality.
“Constitutionality control cannot serve as an oblique route to legislative reform, in such a way that the legislator’s options cannot be revoked if they do not violate the constitutional text. The discussion and deliberation regarding the ‘best solution’ to regulate a given matter must take place exclusively within the scope of the legislative process”, wrote, in an opinion, Unisinos professor Lênio Streck, hired by Google in the case.
In a similar way, lawyer and retired STF minister Francisco Rezek defended the constitutionality of the Marco Civil da Internet.
“Brazil today has one of the most modern and complete regulatory legislation on digital law, inspired by safe and sensible examples from the northern hemisphere. The Marco Civil da Internet guarantees the user sufficient and adequate rights and guarantees, in full accordance with the precepts of the Charter. The supposed unconstitutionality of article 19 of the MCI is a fiction”, he stated in an opinion contracted by Facebook.
The trial at the STF will begin on Wednesday (27), from 2 pm. Before the ministers vote, the parties – lawyers from Facebook, Google, and people affected by offensive publications – in addition to the Attorney General’s Office (AGU), Attorney General’s Office (PGR) and interested entities will be able to speak in the plenary. The reporting ministers are Dias Toffoli and Luiz Fux, who vote first.
