After years of discussions, yesterday (26), the Federal Supreme Court (STF) concluded its judgment on general repercussion issues No. 987 (RE 1037396) and No. 533 (RE 1057258), declaring the partial and progressive unconstitutionality of art. 19 of Law No. 12.965/2014 (Marco Civil da Internet). This decision has the potential to have a significant impact on shaping the future of the internet in Brazil.
This provision is what outlines the civil liability regime for digital platforms in the country, regulating the legal consequences when a person, natural or legal, claims to have suffered damage caused by third-party content and requests the platform, by notification or complaint, to remove that content.
Thus, with a score of 8 votes to 3, the STF established the general repercussion thesis that the general rule of art. 19, which requires non-compliance with a specific court order for the civil liability of internet application providers for damages resulting from third-party content, is partially unconstitutional.
General principle: According to the general repercussion thesis, until a new law is enacted, art. 19 should be interpreted to allow providers to be held civilly liable, with exceptions provided for in electoral legislation and TSE rules. Furthermore, ISPs are liable for damage caused by illegal or criminal content generated by third parties, including inauthentic accounts, maintaining the duty to remove.
Crimes against honor: In crimes against honor, the thesis establishes that art. 19 applies, without excluding the possibility of removal by extrajudicial notification. In addition, in cases of successive replications of offensive content that has already been declared unlawful, all providers must remove identical publications by means of judicial or extrajudicial notification, without the need for a new judicial decision in each case.
Paid ads and boosts: The ruling also established the presumption of liability of internet application providers in the case of illegal content when it comes to paid ads and boosts, as well as artificial distribution networks, such as chatbot and robot. In other words, in these cases, liability will arise regardless of notification.
Serious crimes: Focusing on the massive circulation of serious illegal content, the thesis defines that ISPs are liable when they fail to promote the immediate removal of content that constitutes serious crimes, including, for example, anti-democratic acts, terrorism, incitement to suicide or self-mutilation, discrimination and hate speech, gender violence, sexual crimes against vulnerable people, child pornography and human trafficking.
In these cases, liability refers to systemic failure, characterized by the omission to adopt adequate prevention or removal measures, violating the duty to act responsibly, transparently and cautiously. The ruling clarifies that isolated illegal content does not in itself generate civil liability in the terms defined.
Marketplaces: The STF clarified that application providers that act as marketplaces are civilly liable under the Consumer Defense Code (Law No. 8.078/1990), and therefore art. 19 does not apply in cases involving them.
Self-regulation: In addition, additional duties were established for internet application providers, who will have to issue self-regulation rules covering a system of notifications, due process and annual transparency reports on extrajudicial notifications, advertisements and boosts. Platforms will have to offer permanent and specific service channels, preferably electronic, accessible and widely publicized, in addition to keeping rules published and revised in a transparent manner. It was also decided that providers operating in Brazil must have a head office and representative in the country, with full powers to respond to administrative and judicial authorities, provide information on moderation and operation, comply with court orders and any penalties.
Finally, the Supreme Court called on Congress to draft legislation capable of correcting the shortcomings of the current regime in protecting fundamental rights and modulated the effects of the decision, which will only apply prospectively, without affecting decisions that have already become final.
O informativo foi produzido pela equipe SouzaOkawa. Para acessar a versão em pdf, acesse o link acima.