STF increases pressure against big techs and corners Congress – 05/11/2023 – Power

The STF (Federal Supreme Court) intensified the pressure for social networks to be held responsible for published content, in a joint that raised new criticisms in the National Congress about an alleged invasion of the Judiciary into the prerogatives of the Legislative.

The STF’s offensive takes place amid the discussion still stuck in the Chamber of Deputies on the Fake News Bill. The proposal involves the regulation of the networks, but faces strong resistance from the so-called big techs —among them Google and Meta.

The majority of members of the Supreme Court are in favor of regulating the activities of these platforms. Some ministers have already publicly defended the creation of mechanisms for this, especially Alexandre de Moraes, Gilmar Mendes and Luís Roberto Barroso.

In recent days, there have been a series of movements in the STF that raised the charge on the Legislature.

The president of the court, Rosa Weber, decided on Tuesday (9) to guide the judgment involving the Civil Rights Framework for the Internet as early as next week, which could anticipate a judicial outcome in case of delay in the vote on the Fake News PL in the Chamber.

The trend, however, is that placing the subject on the agenda will have an impact for the time being more as a pressure tool. That’s because in next week’s plenary sessions of the STF, on Wednesday (17) and Thursday (18), the court should continue to analyze a criminal action by Lava Jato against former president Fernando Collor —and, with that , there may be no room for judgment about big tech.

On another front, Supreme Court ministers sought to support Parliament’s initiative to regulate technology companies, but with demonstrations also seen as a charge.

On Monday (8), in an interview with the program Roda Viva, on TV Cultura, Gilmar Mendes said he expected a definition from the Legislature. “I have the absolute conviction that Congress will resolve this issue and will find an adequate solution.”

On Wednesday (10), Moraes stated that big techs will be included and that “in Brazil we have demonstrated that there is no land without law”. Later, he threatened to take Telegram offline if the messaging service did not remove text sent to its users in which it said that “Brazil is about to pass a law that will end freedom of expression”.

In his decision, Moraes said that the messages would constitute “flagrant and illicit disinformation against Congress, the Judiciary, the Rule of Law and Brazilian Democracy”.

The STF ministers understand that the ideal would be for the Legislature to address the issue and pass a law that regulates the sector. However, they believe that, if this is not done, the STF will be forced to act due to what ministers see as a legislative omission.

The vote on the Fake News PL was postponed on May 2 in the Chamber due to the risk of defeat by the Lula government, which supports the proposal. Two days later, Minister Dias Toffoli released appeals with general repercussions on the Marco Civil da Internet for judgment by the STF.

At a hearing on the subject in March, Moraes said that the current model for regulating social networks is “absolutely inefficient”, “bankrupt” and “destroys reputations and destroys dignities”. He also said that the platforms were instrumentalized in the January 8 coup attacks.

In Congress, the assessment among party leaders is that the STF is trying to invade the sphere of attribution of the Legislative to regulate an issue that, for them, should be decided by the parliamentarians.

Despite the negative assessment, it is already taken for granted among congressmen that the Supreme Court will deal with the matter.

The most pessimistic scenario is the eventual approval of the bill in Congress. In this case, the court is on its way to overturning the 2014 Civil Rights Framework for the Internet that exempts platforms from liability — thus overriding a decision taken by legislators almost ten years ago.

The Supreme Court must go further and also establish parameters that are not provided for by law for holding big techs accountable according to the severity of the content published on the platforms.

Even the eventual approval of the Fake News PL does not rule out the possibility that the STF will debate the details of the regulation of social networks.

The difficulties in constructing a text that has majority votes have increased the chance of approval for a project that is not very strict with regard to big techs. If this materializes, the tendency is for the court to act to make the rules for platforms tougher.

The scenario in which Congress regulates the issue in the way that the Supreme Court sees as ideal and sets tough penalties for technology companies is the least likely at the moment.

The Supreme Court’s attempt to pressure Congress on an agenda that ministers consider extremely important is not uncommon.

At the end of last year, waiting for a decision by Congress to put an end to the so-called rapporteur amendments, Rosa Weber scheduled actions on the subject for the last weeks of the year’s trial.

Congress reacted and, between one session and another of the Supreme Court, approved a draft resolution that established criteria for the distribution of the so-called amendments by the general rapporteur of the Budget.

The text, however, did not please the ministers, who decided to declare the rapporteur’s amendments unconstitutional by 6 votes to 5.

The case of regulation of social networks can follow a similar path.

Rosa guided the analysis of the processes about big techs on the same day that Telegram provoked a reaction from the government, Congress and Public Ministry after sending a message to users of the platform distorting the PL of Fake News.

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.

In one of the cases ruled by the Supreme Court, a woman asks Facebook for compensation because of a fake profile created in her name. Another case involves a teacher from Minas Gerais against Google – she was the target of offenses in a community of the extinct Orkut.