The minister of the (Supreme Federal Court) voted on Thursday (5) to maintain the accountability of digital platforms for users’ content only after court decision.
With this, he is the first to position himself in judgment in favor of current rules, in alignment with the position of the Big Techs. The other three votes defended the assignment of more obligations to companies.
Mendonça stressed the work already done by the platforms in the task of content moderation based on their terms of use.
The basis of the magistrate’s argument is the concern to safeguard freedom of expression. “The more watched citizen will be susceptible to the so -called silencer effect,” he said.
Another point present in your vote was the differentiation between the various categories of providers and the exclusion of applications from private communications of the discussion.
The minister’s demonstration was completed after two sessions dedicated to the reading of the vote, which began on Wednesday (4).
The trial had been suspended since December last year, on a request for a view – time for analysis – from Mendonça. Until then, three votes had been given from the rapporteurs of the two appeals on trial, and and the president.
Toffoli and Fux were positioned by the overthrow of Article 19 of the Internet Marco Civil, which provides for the liability of platforms for third party content only after court decision, and argued that companies should act when notified by users or even before in some cases.
Already Barroso argued that the rule is declared only partially unconstitutional to allow the accountability of companies if there has already been notification of any legal violation. In cases of possible crimes against honor, he argued that the decision must continue to be up to the judiciary.
Mendonça, in turn, in addition to defending the constitutionality of Article 19 on Thursday, said that the removal of accounts from social networks characterizes prior censorship.
The measure has been adopted in recent years mainly by Minister Alexandre de Moraes, against pockets accused of attacking the integrity of the electoral system or even promoting undemocratic acts
“By suspending the profile of a particular user or access to the services of an entire digital platform due to the systematic production of misinformation, for example, it seeks to prevent new manifestations from the risk of substantiating themselves in new transgressions to the legal system,” Mendonça said on Thursday.
“Said directly: To avoid a new manifestation that can configure an illicit, the possibility of any demonstration is tolled,” said the minister.
Another issue raised by him is the possibility of moderation errors. This was because there would be the risk that the consumer had his content improperly withdrawn, which would impair the exercise of freedom of expression, as well as potentially suppressing the right to information of public interest, he argued.
“Examples of moderation errors brought by IDEC [Instituto de Defesa do Consumidor] They well illustrate the difficulties experienced by the algorithm to promote removal. Video removal was verified about self-examination to avoid or identify breast cancer. Or a poet, Rupi Kaur, about menstruation. Or even of LGBT language jargon seen out of context as disrespectful, failing to recognize its social value, “he said.
Mendonça also stated that the platforms should be able to identify whether certain content has been the subject of boost and, if so, whether this amplification was sponsored by the user or departed from direct initiative of the platform itself.
He advocated the possibility that platforms limit the reach of certain publications “by checking facts and algorithm calibration”, as well as curbing the use of non -authentic or automated accounts “for harmful practices”.
“Still, prevent the monetization or boost of accounts used for the purpose of practice of illicit conduct, also promoting scans to eliminate non -authentic accounts or bots employed for illicit practices,” he said.
At the beginning of the vote, the magistrate argued that freedom of expression is indispensable for the defense of other freedoms and other fundamental rights and, therefore, must have a preferential position between the rights of citizens.
Still, the minister states that the legislation needs to be improved.
“I am preserving the essence of Article 19. I am not saying that it is the best medicine. In fact, I propose a regulated self -regulation where it has greater mechanisms and then earned this responsibility,” he said.
According to this idea, platforms can elaborate their own normative plan, and the state would be a supervisor.
“The proposed approach holds greater accordance with attempts to promote the self -responsibility of legal entities, from the sanctioning of conduct that may be directly imputed to them,” said the minister.
In the thesis proposed by him, messaging applications would be left out of the rule, and the platforms would have a duty to identify the third party violator of the third party and the one who should be held responsible.
In the case of content removal without court order, it would be necessary to follow protocols to ensure the user access the motivations of the decision, as well as ensuring the possibility of appeal and that the exclusion is done by human, among other aspects.
In addition, the minister argued that the judicial decision that determines content removal should also present fundamental to such a measure.
