Understand differences between judgment in the STF and PL 2630 – 05/20/2023 – Power

Although they are sometimes treated as equivalents in the debate on combating disinformation, there are differences in both scope and impacts between the actions that deal with article 19 of the Marco Civil in the STF and bill 2630 – dubbed PL das Fake News – pending in the Chamber.

The court’s review of cases relating to the Marco Civil has been postponed to June after entering the court’s docket on May 17. The court’s move 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 rejecting the text.

Understand the differences and common points between the judgment of article 19 of the Marco Civil and the bill.

What are the points of convergence? One of the points of convergence is that both are related to the regime of responsibility of digital platforms, that is, about the moment from which these companies can be sentenced to pay compensation for third-party content hosted on their services, in the event of lawsuits by Moral damages, for example.

Do the action and the project refer to the same targets? The effect of the STF decision can reach not only social networks, search engines and messaging applications, targets of the PL, but any website or application.

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.

What does the questioned article in the Supreme say? 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.

What are the differences between shares and PL? The judgment of the STF has a more restricted scope, dealing only with the liability regime of the platforms. The bill seeks to regulate big techs, imposing a series of obligations on companies.

If approved, they must, for example, carry out assessments on their “systemic risks”, considering aspects such as the functioning of their algorithms, their content moderation systems, their terms of use and how they are applied.

What paths can the STF adopt? There are three paths that the STF can follow in the judgment. 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.

Does PL 2630 change the corporate responsibility model? The project establishes some criteria and situations in which social networks could be held responsible regardless of non-compliance with a court decision.

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 even without notification.

What happens in case of an intermediate Supreme Court decision? In this scenario, it is possible that an eventual decision by the STF will approach the path adopted by the bill under discussion in the Chamber of Deputies. This would occur, for example, in case the court establishes exceptions to article 19 for certain crimes. Experts also do not rule out the possibility of the court imposing new duties on companies.

The court would have to justify, based on the Constitution, the reason for its decision.

In addition to this scenario potentially raising questions about the legitimacy of the court to impose obligations not provided for by law, there are doubts by experts on the subject about its effectiveness, compared to PL 2630, given that it would not establish a supervisory structure, as discussed in Congress .