Abstract
In April 2014, the Brazilian National Congress passed Federal Law number 12.965, known as the Civil Rights Framework for the Internet. This law is praiseworthy both for the means by which it was developed and its effect. That is to say, the legislation (i) was the result of numerous public hearings in which civil society was called on to participate actively, (ii) endorses democratic principles for full access and use of the Internet in the country, and (iii) sets clear parameters for the liability of Internet-service providers. Based on this new legislation, this Chapter sets out to portray the panorama of the liability of Internet-service providers in Brazil today, in comparison with the understanding of Brazilian doctrine and jurisprudence on the matter prior to the enactment of the Civil Rights Framework. It concludes that the Brazilian system seems to have taken an important step in building efficient parameters for the liability of providers, including the need for a legal notification as a formal requirement to hold the provider responsible.
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- 1.
Despite the fact that there is no definition in the law that differentiates access and content providers, the courts have ruled that there is a fundamental difference between them in terms of civil liability. The former does not hold any responsibility for damages caused by third parties to others by using its provision. Mainly, this provider has the only purpose of giving others the architecture to access the Internet. On the other hand, content providers are those who manage different kinds of content, such as Facebook, Google, and Yahoo. They may be held responsible for damages caused by third parties if, after judicial notification, the ISP does not comply with a judicial order to take down potentially harmful content generated by third parties. This difference of concept can be identified in the way the Civil Rights Framework deals with civil liability of one or the other in its articles 18 and 19, as seen in sections “Article 18: Exclusion of Liability of Access Providers for Content Generated by Third Parties” and “Article 19: Secondary and Conditional Liability of the Application Provider” of this Chapter.
- 2.
Article 5 of the Constitution of the Federative Republic of Brazil defines as fundamental rights, among others, freedom of expression of thought and intellectual, artistic, scientific and communications activities (article 5, IV and IX). The article further provides for inviolability of privacy, private life, and personal honor and image, as well as secrecy of correspondence and data via telegraphic and telephonic communications (article 5, X and XII). Also, article 220 provides that ‘freedom of thought, creation, expression and information, in any form, process or vehicle will suffer no restriction, as provided for in this Constitution’; the second paragraph adds that ‘any and all censorship is forbidden, be it of a political, ideological or artistic nature’.
- 3.
Article 932 of the Brazilian Civil Code, which deals with indirect or secondary liability, states: ‘the following are equally liable for civil reparation: I – parents, for under-age children under their authority and in their company; II – guardians and protectors, for the wards and protected ones in the same conditions; III – employers or proprietors, for their employees, servants and functionaries, while performing the work assigned to them or because of such; IV – the owners of hotels, hostels, houses or establishments which charge their guests, residents and pupils for accommodation, even if for the purpose of education; V – those who have at no charge taken part in the produce of the crime, up to the stated amount’.
- 4.
In Brazilian law, the term “secondary liability” means that the victim has to primarily seek reparation from the direct perpetrator of the damage. Where unable to obtain such restitution, he or she can then seek reparation from the person indirectly responsible for the direct perpetrator, such as the employer in the case of a damage caused by the employee.
- 5.
Article 933 provides that ‘the persons indicated in sub-items I to V of the preceding article, even if there is no fault on their part, will be responsible for acts practiced by third parties referred to therein.’
- 6.
See also Supreme Court of Justice, Special Appeal 1.186.616/Minas Gerais, Third Panel, Rapporteur Minister Nancy Andrighi, decided on 31.08.2011. Similarly, see Special Appeal 1.193.764/SP, Third Panel, Rapporteur Minister Nancy Andrighi, decided on 08.08.2011.
- 7.
As Marcel Leonardi puts it, ‘the need for judicial analysis and specific notification to take down content cannot be ignored, since deciding on the legality or illegality of the material—in all its possible forms—is something necessarily subjective, besides being the exclusive prerogative of the Judiciary, not of the users or the providers. Jurisprudence is actually moving in this direction, with different decisions emphasizing that this is a role reserved for the State, and it cannot be usurped by the intermediaries or the users’. (Leonardi 2010)
- 8.
Bezerra offers the following opinion: ‘It is undeniable that for the actual provider of content to take down contents from the air – as the STJ imposes – entails a discretionary judgment of the nature of the divulged data. Moreover, by suspending certain content, the provider will be making a comparison between the fundamental right to privacy on the part of the person who feels offended and the fundamental right to freedom of expression on the part of the person who spread the information. It is therefore no exaggeration to state that the understanding of the STJ eventually transfers to the providers competence and responsibility that can only be accorded to the Judiciary Power itself’. (Bezerra 2013).
- 9.
Following a preliminary judicial decision in the Daniela Cicarelli case, YouTube was blocked in Brazil in January 2007. The actress had been filmed having sexual relations on a beach in Spain with her boyfriend at the time, Tato Malzoni. The film was distributed over the Internet and the persons filmed filed a successful suit in the Brazilian courts, asking that all the sites that carried the video should take down the images. Sites whose content is controlled by editors complied with the notice. But in the case of YouTube, every time Google removed the video, some user posted the film again. In January 2007, Judge Ênio Santarelli Zuliani demanded that the telephone companies block access to YouTube in Brazil, supposedly for not obeying the legal requirement. The video site remained off the air for 48 h. Realizing the repercussions of the case and under pressure from critics claiming that he had acted like a censor, Ênio changed his decision and freed up access to YouTube. Source: http://info.abril.com.br/noticias/Internet/google-vence-no-caso-cicarelli-10052012-57.shl.
- 10.
References
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Acknowledgments
The author would like to thank Eduardo Magrani for his work in the revision of this paper.
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Mulholland, C.S. (2017). Secondary Liability of Service Providers in Brazil: The Effect of the Civil Rights Framework. In: Dinwoodie, G.B. (eds) Secondary Liability of Internet Service Providers. Ius Comparatum – Global Studies in Comparative Law, vol 25. Springer, Cham. https://doi.org/10.1007/978-3-319-55030-5_7
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