The Civil Rights Framework for the Internet in check: Is Big Tech accountability contrary to Freedom of Expression?

The growth in the use of social networks has led to an increase in crimes and victims in the digital environment, generating a new and wide-ranging subject for discussion in the judiciary and in the academic world, requiring a clear definition of the responsibility of platforms.

The recent decision by the Superior Court of Justice (STJ) to hold WhatsApp liable for inaction in the face of a case of “revenge porn” gives us the opportunity to reflect on the debate that has been raging about the liability of digital platforms for the content published by their users.

The discussion involves not only issues of civil and criminal law, but also fundamental aspects of freedom of expression and internet regulation in Brazil.

The Civil Rights Framework for the Internet and the Accountability Rule

Article 19 of the Brazilian Civil Rights Framework for the Internet (Law 12.965/2014) establishes that internet service providers can only be held civilly liable for content generated by third parties if there is a prior court order ordering removal and the platform fails to comply with the decision. This rule aims to ensure a balance between the protection of individual rights and freedom of expression on the internet. However, in cases of crime, such as revenge porn, hate speech and disinformation, the discussion about the efficiency of this model intensifies.

In the WhatsApp case, the company argued that end-to-end encryption prevents the removal of content, as the messages are not stored on its servers. The STJ, however, considered that the company was inert and could have adopted measures to mitigate the damage to the victim. This decision opens the way for a new understanding of the liability of digital providers, especially in situations involving fundamental rights.

The STF Debate and Freedom of Expression

The Federal Supreme Court (STF) is currently debating issues that will greatly reflect our future and the future of litigation, regarding the liability of social networks and messaging services in relation to user posts. This debate includes the actions of technology companies such as Meta (parent company of Facebook, Instagram and WhatsApp) and Google, as well as TV broadcasters and content apps.

Some examples of debates on the accountability of social networks include:

The Choquei case, which involved the death of a student from Minas Gerais after she reported being the victim of attacks on social networks;

The legal clash between Elon Musk and Alexandre de Moraes, STF minister, over content moderation on X (formerly Twitter);

Draft Law 2630/2020, known as the Fake News Law, which proposes stricter rules for the responsibility of digital platforms.

The STF and other courts will make decisions throughout this year that will have a direct impact on how Brazil positions itself in relation to freedom of expression and the protection of individual rights, in a more or less paternal way. One of the main challenges is to determine the extent to which a platform can be held responsible without compromising the principle of net neutrality and the free flow of information.

Trends and Possible Changes in Regulation

The growing pressure on digital platforms to monitor and remove illegal content could lead to changes in legislation or a reinterpretation of the Brazilian Civil Rights Framework for the Internet. If the Supreme Court or the legislature relaxes the need for a prior court order to remove harmful content, technology companies could be forced to act more quickly to avoid penalties. This would mean that platforms would need to establish stricter mechanisms for monitoring and removing content, which could result in more active control over users' posts, potentially affecting freedom of expression.

In addition, relaxing the requirement for a prior court order to remove content could create additional challenges, such as an increase in self-censorship on the part of platforms, which would start to preventively remove content to avoid legal risks. This could create a scenario in which big tech plays an even more decisive role in defining what can and cannot be said on the internet, shifting the decision-making center from the judiciary to the private sector, but on the other hand, it could speed up the response time for adopting the measure.

In this sense, stronger regulation can bring greater protection for victims of digital crime, reducing the response time for the removal of content that violates fundamental rights.

In short, the future of internet regulation in Brazil will depend on the balance between the necessary protection of victims' rights, in view of the growing number of cases being brought before the courts in this regard, and the preservation of freedom of expression. The WhatsApp case is just one of many examples of how this discussion is far from a definitive consensus and will continue to be analyzed by the courts over the coming years.