STF puts pressure on Congress after Fake News PL gets stuck – 05/05/2023 – Power

The majority of the ministers of the STF (Federal Supreme Court) reached a consensus behind the scenes on the need to judge in the coming months a lawsuit that deals with the Civil Rights Framework for the Internet, in order to hold accountable the social networks that allow the dissemination of attacks on democracy .

In private conversations, the ministers say that, if Congress does not approve bill 2630, known as the Fake News PL, the Supreme Court will pronounce. And, even if it is approved, if the liability regime for big techs is too loose in the text, there will be modulation through a court decision. In the view of ministers, the worst of all worlds is to continue without regulation.

The movement to pressure Congress to approve the PL gained strength on Thursday (4th), when Minister Dias Toffoli released an extraordinary appeal that discusses article 19 of the Marco Civil.

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 the appeal reported by Toffoli, a woman asked Facebook to remove a fake profile that pretended to be her and offended several people. Facebook declined to act. She asked for the overthrow of the profile and compensation for moral damages.

A decision would have general repercussions and could set a precedent to hold platforms civilly liable for not removing content before there is a court order.

Toffoli made the decision to release the action on Thursday (5), two days after the rapporteur for the Fake News PL, Deputy Orlando Silva (PC do B-SP), asked to postpone the vote on the project, after finding that there was not enough support in the House. The postponement came after an intense campaign by big techs against the project and resistance from the evangelical group.

The heavy game of platforms triggered drastic reactions from the Lula government (PT), which called Cade (Administrative Council for Economic Defense) and the National Consumer Secretariat against Google.

Minister Alexandre de Moraes summoned company presidents to testify at the PF and included Google’s offensive against PL 2630 in the fake news inquiry. In his decision, on Tuesday (2), Moraes left several indications about his potential vote regarding the accountability of platforms.

“It is urgent, reasonable and necessary to define –LEGISLATIVE and/or JUDICIAL–, the terms and limits of joint and several civil and administrative liability of companies; as well as possible criminal liability of those responsible for its administration”, said Moraes, in addition to speaking of “the need for immediate regulation of the civil and administrative liability of providers of social networks and private messaging services”.

Four members of the Supreme Court told the Sheetwith reservation that there is a consensus in the court on the subject and it is necessary to judge the case until the middle of the year.

One of them compares the judgment of the extraordinary appeal to decisions by Minister Alexandre de Moraes in investigations against those accused of working to break up democracy in the country.

In virtually all cases, eight court ministers line up and form a majority to defeat the two nominated by former President Jair Bolsonaro (PL), Kassio Nunes Marques and André Mendonça, who usually oppose the others.

There is yet another resource, reported by Minister Luiz Fux, which deals with the same topic and may also be on the agenda. In the action, a teacher asked Orkut (which was bought by Google) to take down a community that had criticized and offended her. She was not answered, and asks Google, in addition to removal, compensation for moral damages.

The majority understanding in the STF is that it is necessary to improve the legal device that exempts platforms from responsibility and requires tougher content moderation.

Today, the Civil Rights Framework establishes that only in cases of images of non-consensual nudity (revenge porn) can companies be held responsible even before a court decision, simply by notifying the user.

Ricardo Campos, a professor at the Goethe University in Frankfurt, says he believes that the STF would place additional obligations on article 19 of the Marco Civil in an extraordinary appeal decision —for example, “notification and action”, following the example of the European E-Commerce Directive, in force since the year 2000.

If the company has been notified out of court by a user or authority, it needs to review the content and decide whether or not it violates the law and needs to be removed. If the company, after extrajudicial notification, considers that the removal of the content is not appropriate, and the Judiciary subsequently decides otherwise, the platform may be punished (for example, in a lawsuit for moral damages, such as the one analyzed in the STF).

In the view of some ministers, the “notification and action” should apply to cases of content that violates the Law of the Democratic State of Law, terrorism and incitement to crimes.

Some, like Alexandre de Moraes, make a parallel with publications related to child pornography, which are automatically excluded by companies, and understand that the same must occur with attacks on democracy.

The rapporteur for the Fake News PL expressed dissatisfaction with the possibility of the STF to anticipate Congress on the subject. “I didn’t give up! I’m still fighting to convince my colleagues that we must fulfill our role and not open the way for judicial activism”, said Orlando Silva to Sheet.

But interlocutors from both Orlando and the mayor, Artur Lira (PP-AL), indicate that Toffoli’s gesture, at this moment, could speed up the procedure in the Chamber and, if there is no vote, a Supreme Court decision would create bases for legislation .

“It seems natural to me that the Supreme Court decides on the extraordinary resources that are there, insofar as Parliament does not adapt the regime of responsibilities of digital platforms to current needs”, says Orlando.

At the same time, with Toffoli’s decision, members of civil society, the Digital Front and platforms are starting to mobilize to avoid what they consider a greater evil – in this case, a decision by the STF, which would probably be much more drastic and comprehensive than the bill.

In a note this Friday (5), the Internet Management Committee expressed support for PL 2630, saying “it is in agreement with the exceptional flexibility of the liability regime triggered by the security protocol mechanism, provided for in article 12 of the said substitute, when it is found that the platforms have not acted diligently to contain the dissemination of content typified as crimes, under the terms of article 11”.

UNDERSTAND WHAT IS UNDER DEBATE:

What is the debate about the regulation of social networks? Under the impact of the coup acts of January 8, the Lula government prepared a proposal for a provisional measure that obliges networks to remove content that violates the Democratic State Law, with incitement to a coup, and a fine if there is widespread non-compliance with obligations. Faced with resistance from Congress, Planalto backed down and discusses including these measures in PL 2630, the so-called PL for Fake News.

What is the Civil Rights Framework for the Internet?It is a law with rights and duties for the use of the internet in the country. Article 19 of the framework exempts platforms from liability for damages generated by third-party content, that is, they are only subject to paying compensation, for example, if they do not comply with a court order of removal. The constitutionality of article 19 is questioned in the STF.

What is the discussion about Article 19?The rule was passed with a view to ensuring freedom of expression. One justification is that networks would be encouraged to remove legitimate content for fear of being held accountable. On the other hand, critics say the rule discourages companies from tackling harmful content.

Does the government’s proposal impact the Marco Civil?The understanding is that the project will make one more exception in the Marco Civil. Today, companies are required to remove non-consensual nude images even before a court order. The government wants scamming content to also become an exception to the immunity granted by law, but companies would not be subject to fines if one or another violating content was found on the platform.

How has Congress reacted to the discussion?Part of the Legislature criticizes Planalto’s proposal for believing that accountability would lead companies to censor themselves to avoid sanctions. There is also the creation of the regulatory body for the networks, which was dubbed by the opposition as the “Ministry of Truth”. The Fake News PL would be voted on last Tuesday (2), but, given the risk of defeat in plenary, it was postponed by the mayor, Arthur Lira (PP-AL)