Aras defends content removal thesis without court order

The Attorney General of the Republic, Augusto Aras, defended the theses of ministers of the Federal Supreme Court (STF) and the Executive Branch that platforms and internet providers are obliged to remove, on their own, without the need for a court order, content considered as “anti-democratic” or “false”. The understanding was presented this Monday (15), in two extraordinary appeals (REs), with general repercussions, scheduled for the Court’s session this Wednesday (17).

Today, according to article 19 of the law that regulated the Marco Civil da Internet, technology companies can only be punished for an offensive post if they fail to comply with a court order to remove that content. It is up to the judge, after being summoned by the victim, to assess whether in fact a certain post violates the honor or image of the offended person. The purpose of the norm is to protect freedom of expression and reserve for the Judiciary the role of analyzing whether or not publications made by users of the networks are illegal.

The two lawsuits under analysis by the STF, filed by Google and Facebook, try to prevent platforms from being punished for posting content that is considered offensive, but which has not been subject to assessment by the Judiciary, in compliance with the text of article 19 and safeguarding the freedom of expression (until proof, by judicial means, of illegality). Even so, government representatives and STF ministers argue that this understanding is changed, and that platforms start to suffer sanctions if they do not remove content, even without a court order.

The fear of the relativization of Article 19 is the opening of a loophole for the Judiciary Power and the government to impose massive surveillance on the networks for the removal of content, with threats of fines and other sanctions, which may prevent the transmission, through messages and videos, of legitimate opinion, with criticism of authorities, for example.

Aras’ opinion is in line with what the government wants and the latest decisions by Minister Alexandre de Moraes – who, during the elections and after, took a series of measures to prohibit the broadcasting of content. For Aras, although article 19 protects the constitutional right to freedom of expression, it is not up to internet providers to carry out undue censorship or prior control of legal opinions and thoughts, there must be an exception to this guideline in cases of illegal practices.

“Although the legislator has prepared article 19 of Law 12.965/2014 [Marco Civil da Internet] with an emphasis on freedom of expression, based on the guidance that it is not up to internet providers to carry out undue censorship or prior control of opinions and thoughts, such a guideline must be exceptional in cases of illicit practices, with application managers having to act with the due care and diligence, to prevent platforms from serving as a space for content that violates fundamental rights,” he said in his opinion.

Aras summarized his opinion in the following guidelines for the topic:

• I) it is up to the hosting provider of personal profiles (social networks) to previously control the content of the data transiting on their servers; It is
• II) prior to the enactment of Law 12.965/2014, offenses against users or third parties, published in profiles or virtual communities maintained by the provider, must be excluded at the request of the offended party and within a reasonable time, regardless of a specific court order; It is
• III) even after the effectiveness of Law 12.965/2014, the provider of internet applications, regardless of a court order, must act with due diligence, in order to observe fundamental rights, prevent their violation and repair damages resulting from conduct of users not covered by freedom of expression, such as unidentified illegal demonstrations, based on known untrue facts or criminal content.