The topic of regulation and responsibility of big techs returns this Wednesday (10) to the analysis of the (Supreme Federal Court), this time for the judgment of appeals that may limit the court’s decision that established new obligations for digital platforms and generated questions from companies and civil society entities.
The court’s ministers will look into challenges that seek, from different perspectives, restrictions on the rules imposed, in addition to better detail, a year after the judgment that imposed the main changes on the subject since the entry into force of , in 2024, and weeks after (PT) publishing decrees based on the court’s own decision. The opposition moves to try to overturn such texts.
In total, 12 appeals will be analyzed, presented both by companies participating in the process, and by platforms, entities and civil society organizations that were admitted as friends of the court in these actions to contribute to the debate.
Among the points questioned in the appeals are which actors the rules would apply to: whether to companies of any size and economic size and whether there would be other exceptions in addition to those already defined by the court, depending on the type of platform, as in the case of the online encyclopedia Wikipedia.
The STF decision was handed down in June last year, while the trial ruling, which formalized it, was published in November. On that occasion, the court looked at two actions reported respectively by ministers and . When analyzing them, the Supreme Court plenary established a thesis with 14 points and which, in practice, comes close to regulating platforms.
According to article 19 of the Marco Civil da Internet, social networks were only subject to pay compensation for content posted by third parties if, after a court decision ordering its removal, they kept content up.
In the thesis approved at the time, the court – which until then only included non-consensual nudity and copyright infringement. It also created the obligation for proactive moderation by the networks for a list of topics — such as anti-democratic crimes, incitement to racism and incitement to suicide — providing for punishment in case of systemic failure. In other cases, the STF understood that networks can only be punished if they do not remove them after notification.
As for crimes against honor, the court determined that the rule would follow the same, therefore requiring the need for notification.
Among the resources, there is the question of whether journalistic content and civil offenses, in addition to crimes against honor, should also require a judicial decision to hold the company responsible in case of non-withdrawal. These points were defended respectively by Abraji (Brazilian Association of Investigative Journalism) and the NGO Artigo 19, specialized in topics linked to freedom of expression.
Different actors also question the requirements for content removal notifications that could lead to companies being held liable, and the list of legitimate parties that could present them.
Facebook and Google question in their appeals a clear establishment of a time frame from which the court’s decision would apply.
In addition, Google asks the court to define requirements for extrajudicial notifications of content removal to be sufficient to generate liability for companies in the event of non-removal. The company argues that the author of the notification would have to demonstrate their identity and status as offended, individualize the questioned content and briefly explain what the illegality would be.
Facebook asks that the items in the Supreme Court’s decision that provide for rules on the removal of illicit or criminal content, regardless of a court decision, include the word “manifestly”. The objective would be to make a distinction between obvious cases and those with a more complex analysis. Another point of questioning refers to responsibility for advertising content. The company also requests a minimum period of six months to implement the rules, counting from the final decision (when there is no longer any possibility of appeals).
André Boselli, coordinator of information ecosystems at the NGO Article 19, points out that one of the main points that require the court’s attention concerns the provision that, in case of reasonable doubt about the illegality or otherwise of content, companies would not be held responsible without a court decision for removal.
Paulo Rená da Silva Santarém, researcher at Iris (Institute of Reference in and Society) and doctor in law from UnB (University of Brasília), assesses that an important point to reduce the real risk of private censorship by companies is that the court better details the procedural requirements to be followed by companies, such as communicating to users regarding their moderation measures.
He also considers that, depending on what the STF decides, the powers outlined in the government decrees on the powers delegated to the ANPD (National Data Protection Agency) may suffer interference or even partial invalidation.
Camila Tsuzuki, research coordinator at InternetLab, a center dedicated to digital rights issues and one of the actors who presented the appeal, highlights that one of the unclear points refers to what constitutes a “systemic failure” and what the liability regime is for marketplaces (online shopping platforms).
Understand the judgment
What the Marco Civil predicted
Article 19 provided that social networks and content providers were only subject to pay compensation for content posted by third parties if, after a court decision ordering its removal, they kept the material up.
What was the exception
Article 21 stated that non-consensual nudity content should be removed after extrajudicial notification to the affected person or their legal guardian
What the STF decided
Crimes against honor follow the rule of article 19, requiring a court order to be held responsible for non-removal. In the resources, there are requests to expand the hypotheses for this item.
For crimes and illicit acts in general, the same rule as in article 21 now applies, which previously only applied to revenge pornography. In other words, the company can be held responsible after notification. In the appeals, the requirements regarding this notification process are requested to be defined.
As for certain crimes, such as attacks on democracy, terrorism, incitement to suicide, discrimination, against women, sexual crimes against children, human trafficking, companies must proactively remove them. In this case, punishment is due for “systemic failure”, not for isolated posts. In the resources, we also seek to better define this rule
In the case of illegal advertisements and paid boosts or “artificial distribution network (chatbot or robots)”, there is a presumption of liability on the part of the companies. The interpretation of this rule is questioned in the appeals.
