The STF (Supreme Federal Court) scheduled the 10th of June for the judgment of appeals presented by digital platforms against the Court’s decision that increased the liability of technology companies for content published by users on social networks.
The topic gained even more relevance after the publication of two presidential decrees that incorporated the obligations defined by the STF into the regulation of the Marco Civil da Internet.
In an interview with CNN, Eduardo Felipe Matias, PhD in International Law from USP, analyzed the legal and political scenario surrounding the new regulation, pointing out advances and potential loopholes in the decrees.
The STF judgment and the platforms’ resources
In June last year, the STF defined, by majority, a thesis with new obligations for technology companies who explore social networks in Brazil. The main one is proactive action in removing content that could be characterized as committing crimes.
After the official publication of the result, digital platforms filed appeals questioning points considered obscure, such as the so-called extrajudicial notification, the deadlines for the rules to come into force and the sharing of information with investigative authorities.
The judgment of these appeals was initially scheduled to take place virtually, but, after a request for it to be taken to the physical plenary, it was rescheduled for June 10th.
According to information revealed to CNN in a confidential condition, big techs fear that, during the judgment of the appeals, the ministers will anticipate opinions favorable to the constitutionality of the , which would reduce the space for future legal challenges.
Presidential decrees and their implications
In the month before the trial, two decrees were issued that regulated the Marco Civil da Internet, incorporating the obligations defined by the STF and expanding the supervisory powers of the Internet. ANPD (National Data Protection Agency).
Among the determinations, the obligation for platforms to remove images of non-consensual nudity within two hours after notification of the victim.
For Eduardo Felipe Matias, the decrees are positive in their content, as they regulate something necessary. However, he points out questions regarding the form: “The most correct path would probably be the legislative path”, he stated, adding that the expansion of the ANPD’s powers by decree, without support in law, is a legally contestable point.
Loopholes and censorship risks
Eduardo Felipe Matias identified two main loopholes in the decrees. The first concerns the difficulty against democracy of mere opinions: “The problem is when they start to be confused with opinion”, he warned.
The second involves the possibility of the AGU (Attorney General of the Union) notifying platforms to remove advertising considered misleading when contrary to public policies, which, according to him, could open space for censorship of legitimate demonstrations of civil society.
The expert recognized that digital platforms are no longer neutral when they start to promote content through algorithms, which justifies greater accountability.
However, he highlighted that regulation needs to be done carefully: “These decrees are positive in the sense of their content, they regulate something necessary, but they can open loopholes, which is why their regulation is very important.”
Dispute between the powers and role of Congress
In addition to , big techs have another front of protest in the National Congress. More than two dozen proposals for legislative decrees have already been presented with the aim of annulling presidential decrees.
Eduardo Felipe Matias assessed that the scenario tends to become more complicated, partly due to historic omission of the Legislature to approve specific legislation on the topic. “There is a prerogative that would belong to Congress and that it did not exercise,” he said.
