The minister of the (Supreme Federal Court) voted this Thursday (5) to bar the rule of article 19 of the , which he said was unconstitutional, and to increase the responsibility of social networks for content posted by their users.
He proposed the creation of a series of duties for platforms and the creation of a department within the CNJ (National Council of Justice) to monitor compliance with the decision.
Toffoli’s vote was concluded in the fourth session of the trial on the processes that deal with sections of the Marco Civil da —among them, article 19, which deals with the liability of social networks for third-party content.
Toffoli and the minister report the two cases being analyzed in court since last week. Fux is expected to vote next Wednesday (11) so that the rest of the ministers can then speak.
Like the minister, Toffoli sought to refute criticism that the STF was legislating and said he would appeal to the STF to create regulation on the topic.
Although the climate in the Supreme Court is favorable to establishing limits on networks, Toffoli’s position of overturning article 19 in its entirety must be the subject of disagreement among ministers. Furthermore, the number of variables placed in the debate should make it difficult for a majority to form a thesis on the subject.
According to Toffoli’s vote, platforms would be able to be held responsible from the moment they are notified by users, and no longer just after non-compliance with a court decision, as established today by article 19. For him, the current model confers immunity to social networks.
The rapporteur proposed using another section of the Marco Civil as a parameter for this regulation. Article 21 should, for him, be the general rule to guide the accountability of networks, providing only for the need to notify the victim or their legal representative so that companies can be held responsible for not having acted.
Today this item only applies to cases of violation of privacy, with the dissemination of nude images or sexual acts without authorization. According to Toffoli’s vote, numerous other topics would enter this list, such as crimes against honor.
Thus, anyone who feels offended by any content published on a social network can contact the company and, from then on, the company’s attitude in responding to the complaint becomes subject to compensation.
“It is not a notification-takedown system. It is notified and analyzed. And the platform assumes the risk. It can remove or not remove it according to jurisprudence, the laws of the country, what is legal or illegal” , he stated.
However, Toffoli proposes a series of exceptions to the rule. In other words, cases in which prior notification would not even be necessary for companies to be held responsible.
This list, according to the minister’s vote, would include content promoted, moderated and recommended by the networks. He argues that these practices are intrinsic to the companies’ business models and, therefore, they profit and must bear the risks and losses of this action.
“The content continues to belong to third parties, because it was created and/or published by them. But, by recommending or promoting it to an indefinite number of users, the provider ends up becoming co-responsible for its dissemination”, he said.
These exceptions to the need for notification also cover illicit or criminal points, which the minister classified as “especially serious practices”.
He cites, among others, terrorism, racism, induction to suicide, violence against children or adolescents, violations against women, health infractions, and human trafficking. It also includes electoral disinformation, citing resolutions from the (Supreme Electoral Court).
The exceptions, in which notification is not required for liability, include fake profiles and accounts that he called “inauthentic, unidentified or automated” — at which point he spoke of robots.
Toffoli also proposed the creation of a series of obligations for social networks, some of them referring to items that were debated in the Fake News PL, but with different formulations and scope. In progress since 2020 at , this project was taken to square one this year.
Among the duties foreseen by Toffoli are combating and preventing illicit practices, preparing a code of conduct, presenting reports, including analyzing the systemic risks of these platforms.
The minister also predicted that companies based abroad must have a legal representative in the country, a topic that was widely debated in the context of Telegram, in 2022, and X (former Twitter) this year.
In the case of marketplaces, such as Mercado Livre, Amazon, Shopee, the minister argued that they must have responsibility, regardless of notification or court decision, in the event of prohibited sales products, without certification or approval by the country’s competent bodies.
In the case of email providers or providers for private meetings, such as Zoom or Google Meet, as well as messaging applications, the minister says that the company would not be held responsible for third-party content circulating in them.
Despite excluding messaging applications, Toffoli stated that when circumstances demonstrate that they are being used more closely to social networks to disseminate offensive or illicit content, the exception will no longer be valid.
The minister also sought to counter that the overturning of article 19 would imply risks to the press, arguing that the same rule applies to journalistic platforms and blogs as for the press “outside the virtual”, and cited the law on the right to reply.
In the first part of the vote, Toffoli stated that the section of the law was not capable, since its publication, of protecting fundamental rights and safeguarding constitutional principles and values in virtual environments, in addition to failing to address the risks that arose from the development of new business models from big techs.
Even though only Toffoli officially had the floor to vote, other ministers made comments throughout the sessions, generally criticizing big tech.
