Brazil is one of the world leaders in internet users, with 139 million users, only behind China, India, and the US. Among these 139 million users, 100 million have profiles on social networks and they spend around 3h and 43min per day browsing. According to the ONG “We are social”, Brazil is ranked as a second-tier nation within users’ time spent on social media, only behind to Philippines.
In this context, it is expected that conflicts on the web keep increasing each day, and more individuals will seek courts protection to solve these conflicts.
Recently, the Superior Court of Justice (STJ) announced that has already judged at least 100 cases related to conflicts on the web, involving liability of internet service providers (ISPs) for content posted by their users, compensation for moral damages and request for content removal.
The Court decisions cover cases starting from 2009, what demonstrates that the relevance of these claims to the Judiciary Branch is prior to the promulgation of the Brazilian Internet Bill of Rights (Marco Civil da Internet), enacted in 2014.
At first, the lawsuits intended to apply the Consumer Defense Code (CDC) to the relationship between internet users and ISPs, what means that ISPs would have a strict liability and the obligation to monitor content published by third parties.
In 2011, via the Special Appeal Number 1.193.764/SP, STJ held that it was necessary to differentiate the legal nature of each ISPs in order to define the limits of liability of the ISPs for content posted by users and the possible application of the CDC. Thus, STJ established that internet service providers is a generic expression for the following types of services: (i) backbone providers; (ii) access providers; (iii) hosting providers; information providers; and (v) content providers.
According to Minister Nancy Andrighi, rapporteur of the judgment, despite the fact that there is a consumer relationship between ISPs and their users, the ISPs are not obeyed to monitor the content posted by users. They work only as a mere intermediary, making the platform available for users to communicate and post content.
In view of this, the internet services providers would be subject to fault-based liability in relation to the illegal content posted by users. In other words, they are only liable for damages resulting from the infringing content if they do not comply with a court order determining its removal.
The Brazilian Internet Bill of Rights have foreseen this understanding in article 19: In order to ensure freedom of expression and prevent censorship, the provider of internet applications can only be subject to civil liability for damages resulting from content generated by third parties if, after an specific court order, it does not take any steps to, within the framework of their service and within the time stated in the order, make unavailable the content that was identified as being unlawful, unless otherwise provided by law.
In addition, in line with the first paragraph of the Article 19, which provides for the necessity of a clear identification of the infringing content to unequivocally locate it, the STJ determined that the plaintiff, in the request for content removal, shall indicate the specific URL (Uniform Resource Locator) from where the infringing content is located.
Besides removing the content, the ISP shall offer the means to identify their users, in order to prevent the anonymity prohibited by article 5, IV, of the Brazilian Constitution.
Lastly, it is worth mentioning some decision concerning the application provider obligation to create an efficient mechanism for reporting and removing allegedly infringing content. The STJ understanding is that even if denunciation tools are inefficient, there is not a direct obligation of the ISP to remove infringing content. After all, the tool is part of an intern policy of a private company, who cannot decide what is and what is not illegal.
*This article was written with the valuable contribution of Vitor Koketu da Cunha, legal trainee of Azevedo Sette Advogados.