The (Supreme Federal Court) suspended this Wednesday (28.Nov.2024) the judgment on the rules of liability of social media platforms. The rapporteur of one of the actions, Minister Dias Toffoli, began reading his vote and should conclude it next Wednesday (Dec 4), when the Court resumes its analysis of the cases.
At the end of the session, the President of the Supreme Court, Minister Roberto Barroso, asked the rapporteurs to finish reading their votes next week so that the trial could be concluded in 2024.
The Court began 4 actions involving the Marco Civil da Internet. The ministers analyze the constitutionality of article 19, which requires a prior court order to delete user content.
The provision determines that platforms can only be held responsible for the damage caused by their users’ publications if they fail to comply with the court order. The result of the trial will decide the type of content that should be removed and in which situations the removal will be made.
In his vote (which is yet to be concluded), Toffoli said that, although the content published on the platforms is the responsibility of the users, it is the social networks that distribute it and, therefore, the companies have a certain duty over the publications.
He stated that it is necessary to update the Marco Civil da Internet after 10 years of “social, economic and political transformations, caused by disruptive technologies”.
He also cited concerns about the “bureaucracy” the process for removing content considered offensive or illegal, even in the face of a court order.
In the trial session next Wednesday (Dec 4), Toffoli must conclude the vote on the appeal that is under his report. Minister Luiz Fux, who has an appeal being analyzed together, must also present the vote on the process for which he is the rapporteur.
RESPONSIBILITY OF NETWORKS
Before Toffoli’s vote, the session heard representatives of companies interested in the shares, including X (formerly Twitter). The social network’s lawyer, André Zonaro Giacchetta, defended the maintenance of article 19. He argued that the Marco Civil da Internet is the result of a multisectoral consensus and ensures that platforms do not remove content subjectively, based on their own value judgment.
The social network in Brazil in August as determined by Moraes. The company failed to comply with several court orders, including blocking profiles, paying fines and not presenting a legal representative in the country.
In turn, the Union’s attorney general, Jorge Messias, defended the declaration of unconstitutionality of article 19. He stated that the Marco Civil da Internet was dated and today’s questions deal with the “survival of the democratic rule of law”.
Messias cited the 8th of January and said that, at the time, he had to request the removal of various content from the platforms that carried “damage to democracy”as they were being broadcast live and, often, monetized. According to him, the removal, however, was only carried out after court orders.
“The immunity brought by article 19 has been used by platforms for negligent conduct and has led to a deficit in democratic quality”he declared.
Regarding the 8th of January, Moraes said that the episode demonstrated the “total failure of the self-regulation system of all social networks of all big techs”. According to him, after what happened, it is “impossible” defend that the device works.
“If it were not for the bankruptcy due to the previous organization, it was for the instrumentalization and collusion on the 8th that demonstrated that self-regulation did not work”he declared.
UNDERSTAND
The vote that began this Wednesday (Nov 28) concerns two of the 4 actions being judged by the Court. They are:
- Civil Rights Framework for the Internet () – discusses the constitutionality of article 19 of the Marco Civil da Internet. The provision says that platforms can only be held responsible after receiving a court order and failing to comply with it; and
- platforms’ responsibility () – whether and how social media platforms should mediate offensive and illegal posts by their users.
Both originated from different concrete cases, but, due to their similarity, they will be analyzed together by the Court.
There are 2 other cases that are on the trial agenda and that must be analyzed next. They concern the possibility of suspending messaging services for all users in case of non-compliance with specific court orders.
