As expected, the minister proposed widely liable for third party content platforms and followed that of the minister in the judgment of the.
Like Toffoli, Moraes proposes that a category of content can generate immediate responsibility for the platforms, even without being communicated in advance of the fact. As a result, they would have to actively monitor a series of contents such as hate speech, attacking democracy, racism, Nazism and fascism, as well as known or severely decontextualized facts that reach the integrity of the electoral process.
The minister also argued that Internet platforms are equated with traditional media, that there is transparency about the functioning of the algorithms, and that the representatives of the companies can be criminally responsible – measures that he had already mentioned on other occasions and are not consensual in the Court.
The judgment of the two extraordinary appeals that regulates the Internet since 2014. Only Minister André Mendonça voted for the constitutionality of Article 19.
It just doesn’t know yet
Currently, according to Marco Civil, companies can only be punished for any damages resulting from content if it is not removed after a court order. There are only two exceptions – unanswered nudity, which is in Article 21 of the Civil Mark, and violation of intellectual property. In such cases, an extrajudicial notification, as a user complaint.
Toffoli, Fux and Moraes propose punishment even before notification for certain content. Gilmar Mendes too, but with caveats.
The position is different from that defended by Luis Roberto Barroso, Flávio Dino and Cristiano Zanin. They foresee that: an extrajudicial notification (private denunciation) would be enough so that the platforms can be liable for damages resulting from the non -removal of content in these cases. This is the regime in force in the European Union – “notice and Take action”.
Moraes, however, distanced themselves from the most radical part of the Toffoli vote-that platforms would have objective responsibility (without guilt or intent) in a series of content.
The minister specified that it does not provide objective liability and spoke of joint liability (both the company and the author of the post could be punished). Big techs prefer that, in case of change in the responsibility regime, be subsidiary (they are only sanctions if the author of the post cannot be charged).
The minister followed the line of decisions when he was at the head of the Superior Electoral Court and Resolution 23,714 of November 2022, which won electoral misinformation.
Moraes joined the consensus among the seven ministers so that companies are responsible for sponsored or driven content without any notification. The logic is: there is a presumption of prior knowledge of the content and, if the company makes money with it, it must also be responsible. The same would apply to inactive robots and accounts (artificial distribution networks).
There is also consensus on the obligation to have representative in national territory for social networks and message applications that operate in Brazil.
And Moraes joins Dino, Zanin, Barroso and Gilmar by proposing a “duty of care” similar to that established by the European Union Digital Services Law. Social networking providers above a certain number of users need to report on preventively identifying systemic risks to democracy resulting from the use of their services, and demonstrating the measures they are taking on this.
Although Moraes has pointed out that there are many things in common between his theses and those of the other ministers who voted for change, there are important differences that will need to be resolved in the final decision of the Court.
The minister said it would be “absolutely necessary” that Big Techs be legally equated with the media. Ministers like Barroso and Zanin would not necessarily agree with it. Algorithmic transparency is nor consensus.
And Minister Edson Fachin, who had the vote postponed to the 25th, has warned that he will propose an intermediate thesis to Dino/Barroso and Moraes/Toffoli.
