The Supreme Court (STF) already has a large majority in favor of expanding the accountability of digital platforms by user content.
Eight ministers have already positioned themselves in this regard, and only two defend the maintenance of current rules. The minister votes at the moment.
The legislation under discussion is currently 2014. It establishes, in its article 19, that companies can only be punished for any damage arising from content if it is not removed after 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.
The eight ministers who have already positioned themselves for changing the rules argue that Article 19 is partial or totally unconstitutional. The two of the minority position argue that the device is constitutional.
Get to know the vote of the ministers on the subject.
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Favorable to changes in current interpretation:
It proposed a category of content that would generate immediate responsibility of the platforms, even if they have not been notified. With this, they would have to actively monitor content such as hate speech, attack against democracy, racism, Nazism and fascism, as well as known facts that are reversed or severely decontextualized that reach the integrity of the electoral process.
He defended the declaration of partial unconstitutionality of Article 19. She said he understood that ministers need to define cases where companies’ responsibility must be higher and denied that their position is linked to restrictions on freedom of expression.
Rapporteur of one case in trial, defended an objective responsibility regime for companies, including from social networks to Mercado Livre, Wikipedia and Amazon. Following Toffoli’s thesis, anyone can sue these companies if they find in their networks a content from the list of sealed, including crimes against the Democratic Rule of Law, acts of terrorism or preparatory, induction to suicide or self -mutilation, racism, violence against children and women, opposition to sanitary measures, dissemination of notoriously reversed or severely decontextualized facts that incitement to physical violence.
Argued that companies can be held responsible regardless of judicial decision in the case of manifestly criminal content. It opened exception to possible crimes and situations of “gray zone”, in which the unlawfulness of the material is not clear.
He argued that extrajudicial notification is sufficient to make companies potentially responsible for third party content except for crimes against honor. For these cases, it would still be necessary to have a court order. It also argued that the platforms are not punished by a single post, but by analyzing the general conduct regarding content considered illicit.
He proposed that the need for a court decision to hold companies in the case of crimes against honor and journalistic content be maintained, but the general regime has established responsibility after notification. He stated that the National Data Protection Authority (ANPD) could act as a regulatory body.
Argued that in cases of offenses and crimes against honor, the need for prior court decision must continue to be valid. But for the other contents considered illicit, the platform would already be subject to liability from an extrajudicial notification. In the case of advertisements or posts driven by payment, liability would occur regardless of notification.
It argued that networks must have an obligation to monitor content on evidently illicit content and may be held responsible in cases where they have “unambiguous science” of the material or in which it has been driven. He said he considered “evidently illicit” “discourse of hatred, crime, racism, more explicitly pedophilia, incitement to violence, apology for the violent abolition of the Democratic Rule of Law, and apology for the coup d’état.”
Against Changes in Current Interpretation
It defends the constitutionality of Article 19 and went further, suggesting to make unconstitutional remove or block users’ profiles on social networks, except when they are proven false – or when it comes to one person passing through another or an inactic or robot profile.
Defended the constitutionality of Article 19 of the Civil Marco. He said it was necessary to give greater protection to the fundamental rights involved in the debate, but said that this should not be done via the judiciary. “The experience that this country had in the regulation of the media has been terrible. We risk seeing reckless actions against journalists and teachers.”
