May the STF lead “big techs” to subordinate themselves to the Constitution and the Civil Code – 05/08/2023

I’m going to suggest here a brake on tidying up the debate on combating “fake news”. The environment was poisoned, and more obscurantism was produced than lights. And, for that, a partnership between the Internet giants and the extreme right competed. Both do not really want any form of regulation, even if for reasons that are different in origin, but which combine in real life. So let the Judiciary, through the Supreme Court, remember what the Constitution and the Civil Code say. If and when order in the mess also interests those who profit from chaos, then we will stop going around in circles on this issue.

There is an Extraordinary Appeal in the Supreme Court that deals with the constitutionality of Article 19 of the Civil Rights Framework for the Internet — Law 12.965/14. Dias Toffoli, the rapporteur, has already informed the Presidency that his vote is ready. So the time has come to address the issue. Let’s remember what the article says:
“In order to ensure freedom of expression and prevent censorship, the provider of internet applications can only be held civilly liable for damages arising from content generated by third parties if, after a specific court order, it does not take steps to, within the scope and within the technical limits of its service and within the stated period, make the content identified as infringing unavailable, subject to legal provisions to the contrary.”

This article violates the foundation of the Constitution itself, whose summary, I believe, is even excessively detailed in Article 5. The caput sums it up, then expands in details:
“All are equal before the law, without distinction of any kind, guaranteeing Brazilians and foreigners residing in the country the inviolability of the right to life, freedom, equality, security and property, in the following terms”

And there follow 74 items and four paragraphs. The “neminem laedere” is one of the pillars of the Constitution. Literal translation: “offend no one” — that is to say: no one has a license to cause harm to third parties. The Brazilian Civil Code, in Article 186, expresses the meaning of this value:
“Art. 186. Anyone who, by voluntary action or omission, negligence or imprudence, violates the right and causes harm to others, even if exclusively moral, commits an unlawful act”.

This foundation is completed in Article 927 of the same code, with its eloquent Sole Paragraph:
“Art. 927. Anyone who, by unlawful act (arts. 186 and 187), causes damage to others, is obliged to repair it.
Single paragraph. There will be an obligation to repair the damage, regardless of fault, in the cases specified by law, or when the activity normally carried out by the author of the damage implies, by its nature, a risk to the rights of others.”

Thus, it has to be:
– the Constitution enshrines the principle of responsibility;
– the Civil Code ensures that no one is exempt from being liable for damages caused to third parties, provided, it should be noted, that there is a causal link, regardless of the intention or disposition of the agent.

The extreme right does not want any regulation at all because it wants platforms and networks to remain the open sewer in which their “influencers” thrive. Companies, in turn, use unclear criteria for deleting pages or boosting content. Its criteria that escape any democratic control. Profits are private. The damage, gigantic!, is public. It turns out that his “normally developed activity implies, by its nature, a risk to the rights of others”, as stated in the Civil Code, rights that are guaranteed by the Constitution.

If Orlando Silva removed civil liability from his text, all would be well for the giants. Because that would imply that they would not be bound by any form of transparency and could never be liable for damages caused by the criminal content they harbor. And hosting third-party content is “their usual business”, right?

It is not by chance that the “alternative” proposal by Deputy Mendonça Filho (União Brasil-PE), which is part of the lobby of Internet companies, precisely eliminates… civil liability.

The requirement contained in Article 19 — such liability would only be possible in the event of non-compliance with a court order — is an aberration because the application of the Constitution and the Civil Code does not depend on the determination of a judge, because this would imply that, under certain circumstances, this could make both laws ineffective — one of them being the Greater.

The rapporteur has already removed the regulatory body from his text, leaving it for a later stage. It appears that the intention is also to exclude remuneration for companies producing journalistic content. I always defended, as you know, that these things were in different proposals. And yet, it is possible that you do not consider yourself enough.

I don’t know what the vote of Dias Toffoli, the rapporteur for the Appeal, is, which will define the constitutionality or not of Article 19. I see no possible way for that section to be considered constitutional.

Let the PL defenders assess the situation. If that’s the case, then wait for the court’s decision, and I don’t see how it can throw the Constitution and the Civil Code into the trash. If and when it becomes clear that civil unimputability does not exist and that companies, therefore, will be subject to a veritable judicial storm due to the barbarities they harbor, perhaps they themselves will be interested in some form of discipline, subordinated to legal commandments.

I don’t know if, in that case, the so-called “big techs” would start a campaign against the Supreme Court themselves, not just the pages they house. If it happened, they would openly apply to take the place of the Brazilian State. The confrontation would change levels. Democracy has to pay to see.

This Monday, at 12 pm, the podcast “Reconversa” will air. And the theme is the PL of “fake news”. Lawyer Walfrido Warde and I interviewed Orlando Silva. The conversation was recorded on Thursday morning. It airs uncut. There was no question, then, of withdrawing from the PL the remuneration of journalism companies. But I made such a defense again. It is fair and necessary, but, I understand, it should be discussed in another PL.

I insist: as soon as the Supreme Court demonstrates the scandalous illegality of Article 19 of the Marco Civil, the paths will open. In that case, the law, rather than the lawless land, will also be of interest to companies.

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