An emergency mechanism for viral content, greater transparency and a type of supervised self-regulation of social networks are some of the points foreseen in a book that is probably one of the minister’s main references on the topic.
The president of the (Supreme Federal Court) is expected to vote this Wednesday (18) on the resumption of the trial on the Marco Civil da Internet, which addresses the responsibility of platforms for content posted by users.
The minister has a special closeness to the work cited for two reasons: he wrote the presentation and is the father of the author.
Launched two years ago, “Freedom of Expression and Democracy in the Digital Era” (editor Fórum) was written by as a result of her master’s thesis in public law, approved with distinction at Uerj (State University of Rio de Janeiro).
In line with what the minister signals in public gestures, the book defends what would be an intermediate position between the existing legislation for platforms and the two votes already given in the trial, by ministers Dias Toffoli and Luiz Fux.
Currently, according to article 19 of the , companies can only be held responsible for third-party publications if they do not act after a court decision, with the exception of cases of copyright infringement and non-consensual nude images.
The votes of Toffoli and Fux, on the other hand, provide for the declaration of unconstitutionality of the article and the definition, by the court, of a much broader scope of topics and situations in which big techs could be held responsible.
The demonstrations of both were seen by different sectors as generic, putting Brazil at risk of having a model.
Last week, in a gesture understood as an attempt to resume the debate in different terms, as now the minister will be the first to vote on the return of the trial, and not the last.
Emphasizing that he does not have early access to his father’s position, Luna says he expects an intermediate vote.
“What I could say, objectively, looking at his previous statements on issues of freedom of expression, is that he has always been concerned about censorship, including that inspired by good purposes”, says the lawyer.
“But, on other occasions, he has also pointed out the perception that the internet cannot be a lawless space. So, I think we can anticipate a vote that considers these two elements.”
Discover below the main excerpts from her book, which is doing a PhD on the subject at USP, and see what the work signals about the position of the president of the STF in the trial.
1) Weighting
In the presentation of the book, the president of the STF makes clear his agreement with the book’s approach by highlighting both the need for platform regulation and the concern with freedom of expression.
“The text seeks to reconcile, in fair measure, boldness and prudence: the recognition of the need to regulate social media and the precautions necessary to protect freedom of expression of thought, a right always at risk in the Brazilian historical experience”, he writes.
The minister also recognizes the work’s “valuable contribution” with regard to inauthentic user behavior and the dissemination of misinformation.
2) General analysis
Luna argues that any accountability of platforms should be based on a systemic analysis of moderation, and not on specific cases.
“This is because, in the most difficult cases about freedom of expression, well-intentioned people may disagree on the assessment of the legality or illegality of speech. And platforms’ fear of liability could lead to the removal of excess content to avoid subsequent sanctions”, he says .
In relation to the exceptions to article 19 of the Marco Civil, which already cover nudity, she states that they may eventually be expanded “to other content whose illegality is also objectively ascertainable”.
“But I consider it important to highlight that crimes against honor are not objective and should not, under any circumstances, be included in any list.”
3) ‘Regulated self-regulation’
In the book, the lawyer proposes a model that she calls “regulated self-regulation”, in which platforms would have autonomy to establish content regulation policies, but there would be requirements for transparency of information to the entire society and to a control body.
This body, with a majority composition of civil society, would verify compliance with the platforms’ moderation policies.
she stated that the Management Committee in Brazil could play this role if it were qualified to do so.
4) Emergency mechanism
The book also advocates the establishment of a kind of emergency mechanism to avoid irreversible damage. When certain content went viral at a very fast rate — a pace that would be previously established —, sharing would be suspended pending analysis by the platform.
If the material were not considered illegal or harmful, it could be shared again.
