Barroso defends making Marco Civil more flexible to hold big techs accountable for illegal content

civil milestone

Speaking at Unesco, the minister defended flexibility in cases of incitement to crimes, terrorism and child pornography

The Minister of the Federal Supreme Court (STF), Luís Roberto Barroso, defended the flexibility of the Marco Civil da Internet for situations involving incitement to crimes, child pornography and terrorism. The magistrate’s speech took place during a conference of the United Nations Educational, Scientific and Cultural Organization (Unesco).

Marco Civil, from 2014, is the main law that regulates the internet in Brazil and determines that platforms can only be civilly liable for third-party content if they do not comply with court orders for removal.

For Barroso, companies should have the duty to act even before a court order in cases of illegal posts, including content that violates the law of the democratic rule of law, which prohibits requests for the abolition of the rule of law, encouragement of violence to overthrow the government or incitement of animosity between the Armed Forces and the Powers.

“In the case of clear criminal behavior such as child pornography, terrorism and incitement to crime, platforms should have a duty of care to use all possible means to identify and remove this type of content, regardless of (judicial) provocation,” he said. Barroso in plenary at the “Internet for Trust” conference, which debates global guidelines for internet regulation.

Holding platforms accountable before a court order is at the heart of the controversy over the new regulation of the internet under discussion by the government. The Ministry of Justice wants to include in bill 2630, known as the Fake News PL, punishment for internet platforms that do not act against content that violates the law.

For one wing of the government, if the proposal does not incorporate this point, the regulation will be ineffective, because it will maintain the networks’ immunity. Part of civil society, Congress and all platforms, on the other hand, claim that accountability would lead companies to censor themselves by removing legitimate content to avoid sanctions.

At Unesco, Barroso stated that the responsibility of platforms for third-party content must be “reasonable and proportionate”. For this, there would be a duty to proactively remove illegal content.

In cases of clear violation of third-party rights, such as sharing intimate photos (something already provided for in the MCI, revenge porn) and copyright infringement, companies should remove the content after notifying the interested parties, said Barroso.

In all other cases, “in shadowy areas where there is a reasonable degree of doubt”, removal will only be mandatory after a first court order.

“My position has not changed, times have changed and today we have a series of new threats in the digital sphere, such as attacks on democracy and the electoral system and extremism”, Barroso told the Sheet.

The STF may judge this year a lawsuit that debates the legality of article 19 of the Civil Rights Framework for the Internet.

In a lecture at Sciences Po on Wednesday (22), Barroso had already anticipated his change of position in relation to the accountability of platforms. And he stated: “We strongly need regulation to strike a balance between avoiding the danger of the so-called ‘chilling effect’ (self-censorship) and also attacks against democracy”.

According to him, “when there are constitutional interests that clash, one tries to make concessions to harmonize interests. If this is not possible, you must choose one of them. And I choose the preservation of democracy.”

* With information from Folha de São Paulo

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