The government () has changed its stance on third-party content.
The central theme of the discussion is article 19 of the , which says that networks are only subject to pay compensation for something posted by a third party if, after a court decision ordering its removal, they keep the content on air.
In oral argument, this Thursday (28), the Union’s attorney general, Jorge Messias, defended the unconstitutionality of the rule, which would overturn it.
In a statement filed in the process, the Union had previously taken an intermediate path, which in legal jargon is known as “interpretation in accordance with the Constitution”.
The Civil Rights Framework for the Internet was approved in 2014, under the administration of Dilma Roussef (PT), after years of discussion, marked by public participation.
Additionally, Messias argued that, if the court did not accept the position of declaring unconstitutionality, the guidelines indicated in the protocol’s memorial should be adopted, which would come closer to regulating the networks, with a series of new rules, and which in practice would also it would be a profound transformation of the current regime.
The position officially registered in the process had previously been debated in the government, and the change caught members of other departments by surprise.
According to the press office, there was an “evolution of the body’s position” on the issue during the trial, which began on Wednesday (27).
“It would be great if we could give an interpretation according to [à Constituição] to article 19”, said Messias this Thursday.
“But, listening to several representatives here before me, including from platforms, who correctly warned me about the risk of judicialization and predatory litigation, I want to believe that the regime inaugurated by article 19 should not be maintained in light of our Constitution”, he added.
While a decision stating that article 19 is constitutional would keep the scenario as it is, the declaration of its unconstitutionality would overturn it, taking Brazil to the pre-2014 scenario, when there was no specific rule on how the Judiciary should treat this type of situation.
The current rule would aim to protect freedom of expression and avoid censorship, as it would not encourage companies to remove content for fear of being sued. It does not, on the other hand, prevent platforms from applying their own rules to remove content.
Critics, however, say that it encourages the inertia of networks, by not giving them any incentive to act.
An intermediate line to the declaration of constitutionality or unconstitutionality would be the “interpretation in accordance with the Constitution”, in which the article is maintained, but receives a new interpretation by the Supreme Court.
In this scenario, several points may be the subject of disagreement between ministers, and the chance of questions being raised regarding possible progress on the Legislative powers.
There are also those who point out that, as there is a second action on the matter being judged together and which deals with a case prior to the Marco Civil, even with the overturn of article 19 the court could still end up taking a path of imposing rules.
According to the Sheet with a member of the government, one interpretation is that the AGU’s rising tone could be a strategy to facilitate the formation of a majority through an intermediate vote.
In the memorial presented in the action, signed by Messias and dated November, the Union defended that article 19 be maintained, consisting of a general rule, but with the establishment of a series of exceptions to the general rule.
Platforms could be held responsible, even without a court order or notification, in cases of crimes against the democratic rule of law, terrorism and crimes against children, among others.
For false profiles, or “manifest and deliberate misinformation in matters of public policy”, liability would be applicable in case of “omission”, after extrajudicial notification.
