Apocalypse, nuclear bomb, end of the world, scary, we are astonished — these were some of the expressions used by lawyers, members of the government, the Supreme Court and big tech heard by the Sheet to characterize the minister in the judgment on , handed down on Thursday (5).
Most companies, lawyers and members of the government expected that Toffoli would propose an interpretation of article 19 of the Marco Civil that would create exceptions for platforms’ immunity for third-party content before a court order.
Today, platforms can only be held civilly liable, except in cases of copyright infringement and non-consensual nude images. In these cases, extrajudicial notification is sufficient.
The bet was that Toffoli would propose other exceptions in addition to cases of non-consensual nudity, content violating the Democratic Rule of Law Law, racism and homophobia.
In these situations, the ‘notification and action’ regime applies, in which companies can be held civilly liable if they receive extrajudicial notification and do not act on the content. This regime is similar to that in force in the European Union.
But the minister’s vote, delivered yesterday in a session at , creates a regime of responsibility that does not exist in any major democracy in the world, according to several experts interviewed by the Sheet.
It declares that article 19 is unconstitutional and establishes an objective liability regime for companies, including everything from social networks to Mercado Livre, Wikipedia, Amazon. Only email, messaging and Zoom applications would be excluded.
Following Toffoli’s thesis, anyone can sue these companies if they find, on their networks, content on the prohibited list, including: crimes against the Democratic Rule of Law, acts of terrorism or preparatory acts, incitement to suicide or self-mutilation, racism, violence against children and women, opposition to health measures, dissemination of notoriously untrue or seriously out of context facts that lead to incitement to physical violence.
In all of these cases, companies can be held liable even before receiving a court order or extrajudicial notification, such as a user report. As a result, they would have to actively monitor all content posted on their networks and remove it.
“If this thesis prevails, Brazil will become an international pariah. It’s a nuclear bomb,” says Francisco Brito Cruz, director of the Internet Lab.
The companies foresee a colossal volume of litigation that, according to them, would make it unfeasible for them to operate in the country.
In addition to the long list of types of content that would have to be “filtered” by platforms, Toffoli’s thesis also provides for objective liability for recommended, promoted (paid or unpaid) or moderated content.
“The problem is that, ultimately, any content can be considered recommended — Google search results, for example,” says Cruz, who advocates accountability for paid-for posts and paid ads, but not for recommended content.
One of the concerns was the apparent agreement of ministers Flavio Dino and Alexandre de Moraes with the thesis, in their interventions on Thursday. But other ministers are moving, behind the scenes, to reach a solution more in line with trends in the world, according to the report. Sheet. Ministers had tried to dissuade Toffoli from making a vote considered so extreme in terms of accountability, but were unsuccessful.
