Marco Civil: STF decision may reach beyond big techs – 05/20/2023 – Politics

Postponed to June, the judgment of the STF (Federal Supreme Court) on the Civil Rights Framework for the Internet could reach a much broader universe of websites and applications than the Fake News PL.

While bill 2630 focuses on large technology companies, the main actions under discussion in court deal with the civil liability of internet providers in general for third-party content.

The judgment has a more limited scope compared to what has been debated in the Legislature. This is because it deals with the constitutionality of this rule, and not with the creation of a set of norms and obligations for companies, with the aim of regulating their performance.

An intermediate decision by the court — other than to overturn the current rule in its entirety or keep it intact — could come close to what is provided for in PL 2630.

Such a path, however, depending on the terms imposed by the court in a decision of this type, has the potential to raise questions about the legitimacy of the STF for this purpose.

The court’s analysis of cases relating to the Marco Civil has been postponed to June, after being on the docket last week. The movement has been interpreted as a way of putting pressure on Congress, where the vote on PL 2630 was postponed in early May due to the prospect of rejection.

Of the four lawsuits filed in the STF on social networks, two deal with Article 19 – the other two relate to the possibility of judicial blocking of messaging applications.

One of the differences between the trial and the project is their targets.

While the PL restricts its focus, in the case of content moderation, to social networks, search engines and instant messaging services with an average of more than 10 million users in the country, the decision that the court issues can have an impact on any website or app.

It is not by chance that representatives of Market Livre and the Wikimedia Foundation, which hosts Wikipedia, expressed their concern in a public hearing at the STF with a possible declaration of unconstitutionality of article 19.

The e-commerce site argued that it is not always clear which ads should be banned and that even regulatory agencies backtrack on notifications to the platform.

Wikimedia, on the other hand, stated that accountability would undermine Wikipedia’s operating model, since, in the collaborative encyclopedia, the removal of content is done by a governance system that places attribution directly on users, and not on the platform.

Today, article 19 of the Civil Rights Framework for the Internet exempts websites and apps from liability for damages caused by third-party content, being subject to paying compensation only if they disobey a court order of removal — non-consensual nudity and copyright are exceptions to the rule.

The intent of the law, passed in 2014, was to ensure freedom of expression by preventing companies from removing lawful posts for fear of being held accountable. Critics say the rule creates little incentive for networks to tackle harmful content.

Professor Anderson Schreiber explains that there are three paths that the STF can follow in the trial.

One of them would be to declare article 19 constitutional, keeping the current rule. The second would be to declare it unconstitutional, which would remove it from Brazilian law. In the third option, the article would be maintained, but would gain a new interpretation, which, according to the court, would be in accordance with the Constitution.

“He [STF] can say that this interpretation requires that there be a notification [à plataforma] but not a court order”, exemplifies Schreiber.

Coordinator of the Legal Reference Center of the NGO Artigo 19, Raquel da Cruz Lima sees in the thematic focuses of moderation of the PL an important difference in relation to the actions in the STF.

The bill, which is yet to be amended, sets out some criteria and protocols for accountability.

If companies fail, after being notified, to remove content in seven categories of crimes during the activation of the so-called “security protocol”, they can be condemned to pay damages. The list includes crimes against the democratic rule of law, terrorism, incitement to suicide or mutilation, against children and adolescents, racism, violence against women and health violations.

In the case of boosted ads and posts, they could be held liable regardless of notice.

Raquel considers that a possible declaration of unconstitutionality of article 19 of the Marco Civil would make room for the platforms to be held accountable —before a court decision— also for other issues, such as crimes against honor.

For her, this can limit the right of ordinary citizens to criticize authorities, for example. The result, she says, may give more power to big techs, contrary to what is said to be the case.

For Artur Pericles, who holds a doctorate in law from USP and a researcher at Yale Law School, Moraes’ decision in relation to Google and Meta (owner of Facebook) in the fake news inquiry indicates that it is possible that the Supreme Court will take a intermediary decision, eventually placing certain obligations on companies for certain types of content.

In May, the minister determined that companies should inform measures they would be taking in relation to a list of illicit acts, similar to that provided for in PL 2630.

“He [Moraes] he has already telegraphed there what seems to be the regulation that he thinks is most appropriate “, says Pericles. “He has already indicated that, categories of content that in his understanding should be controlled more diligently by the platforms.”

The researcher points out, however, that each middle ground decision that the Supreme Court takes will have to be justified, not as something that is possible, but as something that the Constitution requires.

Schreiber, in turn, considers it unlikely that the analysis of Article 19 will follow this path. “Since the article is limited to creating a civil liability rule, the judgment is not likely to result in the creation of duties of conduct that have no basis in law,” he says.

In addition to the legitimacy and scope of any Supreme Court decision, there is also a question about its effectiveness.

Clara Iglesias Keller, research leader in technology, power and domination at the Weizenbaum Institute in Berlin, points out, for example, that in Congress there is a discussion about who will oversee the law and impose fines.

“When based on legislation, the obligation is established. The company has to conform, it is subject to supervision, sanctions. So, in my view, public policy is much more effective”, he says.