Minister André Mendonça of the Federal Supreme Court (STF) voted to maintain article 19 of the Internet Civil Marco, which exempts digital platforms of responsibility for the contents published by its users. The vote is aligned with the interests of the big techs (read explanation later). Although it recognizes the constitutionality of the device, the minister has proposed a series of duties that companies should do to ensure “integrity in the digital environment”.
“It is not possible to blame platforms without prior judicial determination when it comes to manifestation of opinion or thought,” he said. For Mendonça, platforms can only respond to lawsuits if they fail to comply with procedural duties provided by law. Instead of removing unlawful posts, companies must identify the author of the content, which will be the only accountable in court.
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“It is not intended to defend the irresponsibility of the platforms. What is sought is, in defense of freedom of expression, to condition this liability for third party discourse only to cases where there is a breach of a procedural duty, able to demonstrate that they did not act with due diligence,” he said.
The minister also prohibited, in his thesis, the removal or suspension of user profiles, except when proven false or created with illicit objectives (such as drug trafficking). For him, the removal of profiles outside these hypotheses “characterizes prior censorship.” Mendonça stressed that it is up to Congress to regulate social networks, as there is a “reasonable moral disagreement” on the subject.
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“No one better than those democratically legitimized to establish the rules of use of the” Agora “of our time, providing for the limits of the only instrument truly essential to any democratic regime: the guarantee, for all, to express itself freely, whether online or offline.”
Understand the vote
Minister André Mendonça’s vote is aligned with the interests of the big techs. Despite recognizing the constitutionality of Article 19, he proposed duties that companies must follow to ensure “integrity in the digital environment”. See the minister’s determinations at eight points:
- Private messenger services such as WhatsApp cannot be equated with social media, and therefore have no duty to monitor or self -regulation.
- It is unconstitutional to remove or suspend user profiles except when proven false.
- All platforms, including search engines and marketplaces, must identify the user who violates third party rights, blaming him in court.
- When the content is removed without court order (by legal determination or according to the terms of use), protocols should be observed, such as access to the motivations of the decision, preference for human removal and possibility of appeal.
- Except in cases authorized by law, platforms cannot be held responsible for the lack of removal of offensive content, even if subsequently qualified as unlawful by the judiciary.
- Platforms can only be held responsible if they are silent or breach procedural duties provided by law, such as isonomically applying their rules and adopt digital safety mechanisms to avoid illicit use.
- Judicial decisions that determine content removal must present specific grounds and be accessible to the platform, even confidential.
- The minister appealed to the Legislature and Executive so that, when regulating the networks, they adopt the regulated self -regulation model, with clear and specific obligations to the platforms, under penalty of direct liability.
Mendonça was the fourth minister to vote. So far, everyone has presented different positions. Two ministers (Dias Toffoli and Luiz Fux) argued that Article 19 is unconstitutional and that platforms must remove illicit content soon after notification. The president of the Court, Luis Roberto Barroso, argued that Article 19 should prevail in some cases, such as crimes against honor (slander, injury and defamation), to preserve freedom of expression.
