the (Federal Supreme Court) is expected to begin judging this week two actions that should impact the way social networks moderate content, against the backdrop of both the January 8th coup attacks.
From , the expectation is that the court will use the judgment to establish guidelines on how networks should act, in addition to deciding whether the current rule — which exempts platforms from liability for third-party content — is constitutional or not.
The central theme of the trial will be article 19 of the . , he says that networks are only subject to pay compensation for content posted by a third party if, after a court decision ordering its removal, they keep the content on the air. The purpose of the rule would be to protect freedom of expression.
The current rule does not prevent platforms from applying their own rules to remove content. Critics, on the other hand, say that it encourages the inertia of networks, by not giving them any incentive to act.
If the lack of action by Congress to approve new rules was already criticized throughout the term of former president Jair Bolsonaro (PL), in the face of misinformation about the pandemic and attacks against institutions, the —— gave impetus to the ministers’ speech for regulating the topic.
As the Supreme Court’s action has general repercussions, its result will be applied to all other similar cases in Brazil. Furthermore, you should .
While a decision stating that article 19 is constitutional would keep the scenario as it is, the declaration of its unconstitutionality would overturn it, taking Brazil to the pre-2014 scenario, when there was no specific rule on how the Judiciary should treat this type of situation.
The most likely, however, is that the Supreme Court will adopt an intermediate line, making what, in legal jargon, is known as “interpretation in accordance with the Constitution”.
In this scenario, several points may be the subject of disagreement between ministers, and the chance of questions to the STF in relation to possible progress on the Legislative’s attributions increases.
There is a tendency that argues that it would not be up to the court to carry out this type of analysis in this action. It is argued, for example, that the understanding that the current rule would be bad or insufficient would not make it unconstitutional or dubious.
One of the possible scenarios is for the court to establish new exceptions to the general rule of article 19. Currently, the only cases in which a court decision is not necessary to hold platforms responsible are cases of copyright infringement and/or dissemination of nude images. non-consented — in the case of the latter, failure to remove after notification from the injured person or their representative is sufficient.
In this sense, it is suggested that the Supreme Court may establish new themes that go beyond the general rule, such as crimes against the democratic rule of law, racism, hate speech and the protection of children. In this case, ministers can define a path that provides for removal on the initiative of the platforms, or after notification.
Different rules are also being considered for content promoted on networks based on payment by users.
One of the challenges is that Marco Civil, but all application providers, include everything from pages like Wikipedia to shopping sites like Mercado Livre. Therefore, there are those who also defend that the Supreme Court defines which actors will be the target of any new rule.
Another possibility, also controversial, would be for the STF to establish more general obligations, such as the presentation of reports.
In the same way that there are critics that the Supreme Court follows this line, under the understanding that this should be discussed in the Legislature, there are arguments that the inertia of Congress, the preponderance of networks in recent years and .
More than once in recent years, the court . In 2023, he indicated that he would wait for Congress to vote on new rules, which never happened.
In progress since 2020, it was approved in the Senate, but stalled in the Chamber of Deputies due to resistance from platforms and the right — which sought to stick the censure tag on this debate.
In initial versions, it focused on ensuring a “due process” of moderation, so that the user was informed of possible punishments and could appeal, in addition to transparency reports.
In the version formulated under the Lula (PT) government, in 2023, the , which should act against certain illicit acts considered a priority.
The biggest setback to the project occurred in 2024, after a clash between Elon Musk, owner of X (formerly Twitter), and STF minister Alexandre de Moraes, .
Of the actions guided by the STF on social networks, two deal with the responsibility of platforms. The main difference between them is that one is before and the other is after the approval of the Marco Civil da Internet. There are also two others about the possibility of judicially blocking messaging applications.
