Policy by judicialisation: the institutional framework for intermediary liability in Brazil

ABSTRACT

This paper offers an institutional assessment of the intermediary liability system currently operative in Brazil. According to article 19 of the Marco Civil, content sharing platforms shall only be held liable for third party infringement if they fail to act upon it under a court ruling. This is a court-centred system, and as such, it is praised for its benefits to freedom of expression, the assumption being that such a safe harbour should create fewer incentives for intermediaries to overblock content. The goal of this paper is to analyse this regulatory choice beyond the freedom of expression trade-off, considering the institutional characteristics of the judicial decision-making process and how they can affect the broader online content regulation context. It builds on the literature dedicated to the relationship between judicialisation and public policies in order to accrue the practical implications of the judiciary’s legitimacy, institutional capacities and selectivity for the aforementioned governance system.

KEYWORDS:

• Intermediary liability
• platform governance
• policy judicialisation

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 For a comparative analysis of a selection of systems, see SCHULZ e GASSER. Also, the World Intermediary Liability Map is a project from the Stanford Centre for Internet and Society that documents laws around the world that govern Internet intermediaries and shape users’ digital rights. See: https://wilmap.law.stanford.edu.

2 National literature has also developed important works regarding the current framework’s compatibility with pre-existent consumer guarantees and civil liablity rules, and on the jurisprudential evolution that lead to the current state of affairs. For all, see: Chiara Antonio Spadaccini de Teffé. 2015. A responsabilidade civil de aplicações de internet pelos danos decorrentes do conteúdo gerado por terceiros, de acordo com o Marco Civil da Internet. R. Fórum de Dir. Civ. – RFDC | Belo Horizonte, ano 4, n. 10, p. 81–106, set./dez; Anderson Schreiber 2018, Marco Civil da Internet: Avanço ou Retrocesso? A responsabilidade civil por dano derivado do conteúdo gerado por terceiro. Available at: http://tiny.cc/hi9jez.

3 Following a global tendency identified by Gasser and Schulz et al. 2015, p. 5.

4 Preliminary studies suggest a first instance judge’s tendency to not apply article 19’s terms[4]. A quantitative study focused on demands brought against Facebook at the Rio de Janeiro Court of Appeal showed that in 65% of the cases investigated the judges granted plaintiff’s with financial reparation despite of the exemption provided by the Marco Civil. See: Fábio Carvalho Leite, Por que juízes não aplicam o art. 19 do marco civil da Internet?, 22 Jul. 2019. Available at: https://www.plebpuc.science/post/por-que-ju%C3%ADzes-não-aplicam-o-art-19-do-marco-civil-da-internet.

5 The author divides these arguments in three groups in order to challenge them, i.e. to offer a different spin on the critiques towards policy effects of social rights judicialization. I will not challenge this discussion in the paper, but use the classification proposed as lenses through which the critiques towards the Brazilian intermediary liability system are approached.

6 As opposed to the ‘subjective’ or ‘individual’ dimension of freedom expression (that requires a negative provision of states, in the sense of no interference on speech), the ‘objective’ or ‘coletive’ dimension demands positive provisions aiming at the conditions necessary for informed expression. In this spirit, this approach is one of the foundations of structural media regulation policies, notably the ones based on diversity, pluralism, participation and access to information requirements. Jónatas M. Machado, Liberdade de Expressão. Dimensões Constitucionais da Esfera Pública no Sistema Social. Coimbra: Coimbra Editora, 2002, p. 379.

7 The extension of this role is another layered public law dispute, whose outlines are approached by Jane R. Pereira in O judiciário como impulsionador dos direitos fundamentais: entre fraquezas e possibilidades, Revista da Faculdade de Direito RFD-UERJ, Rio de Janeiro, n. 29, jun. 2016.

8 For other concepts, see also: Gregorio, G (2019), ‘Democratising content moderation: a Constitutional Framework’, Computer Law and Security Review. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3469443; Flew, T (2019), ‘Internet Regulation as Media Policy: Rethinking the Question of Digital Communication Platform Governance’, Journal of Digital Media & Policy, 10(1), 33-–40; Grimmelmann, J (2015) ‘The Virtues of Moderation’, Yale Journal of Law and Technology, 17.

9 For instance, in Germany, platforms conduce content moderation not only on their own terms, but also within the scope of the Network Enforcement Act. See HELDT, A (2019). ‘Reading between the lines and numbers: an analysis of the first NetzDG reports’, Internet Policy Review, 8, 2. doi:10.14763/2019.2.1398.

10 Among the numerous cases that illustrate this claim, see, for instance, the famous occasion when Facebook blocked access to the famous ‘napalm girl’ Vietnam war image (https://www.bbc.com/news/technology-37318031); when it temporarily took down a Black Lives Matter activist post over a racist email (https://www.theguardian.com/technology/2016/sep/12/facebook-blocks-shaun-king-black-lives-matter), or when Youtube blocked access to German history classes on the grounds of hate speech (https://www.theguardian.com/technology/2019/jun/06/youtube-blocks-history-teachers-uploading-archive-videos-of-hitler).

11 Content moderation practices fall into at least two descriptions of the different meanings that Julia attributes to the term self-regulation: the ‘unilateral adoption of standards of conduct by an individual firm’ and the ‘intra-firm’ regulation, which is

the design and operation of systems of regulation inside a single organization (…). In this use of the term, the defining feature is that an individual organization is responsible for exercising a regulatory function; whether that regulation is voluntary, mandatory, or within a framework set by law is of less definitional importance. (Black 2001)