The president of the (Supreme Federal Court), , indicated to members of the court that a divergence should be opened this Wednesday (18) on the resumption of .
According to these people, unlike colleagues who have already voted, he should adopt an intermediate position in relation to the possibility of punishing companies for posts by network users.
The president of the court must defend the maintenance of article 19, the central point of the discussion, but with new requirements for controlling social networks and holding companies accountable.
Article 19, currently in force, defines that the company can only be held civilly liable after failing to comply with a court decision to remove content.
Therefore, anyone who feels aggrieved needs to notify the platform and, if not, go to court to ask for the publication to be taken down. If, even with a judge’s order, the company keeps the questioned post up, only then can it be punished.
The minister should maintain article 19 in an attempt to present a more delimited path in relation to what is or is not the automatic responsibility of platforms. He is also concerned, according to reports, with defining ways for companies to take care of the digital environment, in general.
One possibility would be the “interpretation in accordance with the Constitution”, in which the article is maintained, but receives a new interpretation by the Supreme Court.
The first minister to vote, Dias Toffoli proposed using article 21 of the Marco Civil as a parameter for regulation.
The section should, for him, be the general rule to guide the accountability of networks, providing only for the need to notify the victim or their legal representative so that companies can be held responsible for not having acted.
Today this item only applies to cases of violation of privacy, with the dissemination of nude images or sexual acts without authorization. Toffoli proposed including several other themes in this list.
Among them, preparation for terrorism, racism, induction to suicide, violence against children or adolescents and vulnerable people, violations against women, health violations, human trafficking, dissemination of disinformation, especially that which influences electoral processes.
Most of those in article 19 of the Marco Civil, which would create exceptions for the immunity of platforms.
accompanied this vote.
Barroso then requested a review — more time for analysis — last week and scheduled the return of the trial for this Wednesday, reversing the usual rite. Normally, the president of the court is the last to vote. With the request, Barroso will be the first after the rapporteurs and, therefore, has a greater chance of influencing his colleagues.
The minister hoped to complete the analysis of the case this year, an expectation that is likely to be frustrated. The vote took two and a half sessions. Now, there are only two sessions left before the recess and there are still nine ministers to vote.
There is still on the horizon the possibility of a new request for a review by another minister, interrupting the trial again. Being the first to disagree, Barroso will be the writer of the ruling (the court’s final decision), if his position is the winner.
The president of the court is interested in the topic of technology and . In August, for example, he released a book about artificial intelligence and digital platforms.
“I waited for the electoral period to pass so that we wouldn’t have a complex decision like this in the middle of the elections. The Supreme Court will provisionally outline what type of behavior should generate responsibility on the platforms and what the protection of freedom of expression should be,” he said, at the beginning of the month.
On more than one occasion, he stated that the court waited for the National Congress to decide on the issue, including in .
“The matter reached the Supreme Court some time ago. The Supreme Court waited to see if Congress could produce a consensus on this matter. It has not been able to do so until now and the cases need to be judged”, he stated in a meeting with journalists on the 9th.
On the occasion, the minister said that everyone is concerned about drawing, at the appropriate point, the line between the preservation of freedom of expression and the preservation of democracies.
“The internet, in the same way that it democratized access, also opened avenues for disinformation, hate speech, attacks on democracy and conspiracy theories,” he said.
