Facebook and Google appeal STF decision that expanded networks’ responsibility

Facebook and Google appealed the decision of the Federal Supreme Court (STF) that increased the responsibility of social networks for illicit content published by users. The companies ask the Supreme Court to correct omitted and contradictory points in the decision, including the definition of the start of application of the new rules.

In the judgment held in June, the Court decided that article 19 of the Marco Civil da Internet, which exempts platforms from responding for damages caused by posts, is partially unconstitutional. The decision establishes that article 19 only remains valid in cases of crimes against honor (libel, slander and defamation).

In all other crimes, article 21 applies, which provides for the removal of content immediately after notification to the user. This article, which provides exceptions to article 19, is already valid in cases of copyright infringement and unauthorized nude images.

The two companies ask the Supreme Court to clarify when the decision comes into force, as the ruling is limited to saying that the effects apply to the future. “This leaves open fundamental questions about its applicability to past situations already discussed in ongoing processes”, claims Facebook.

Google points out a material error in the use of the expression “chatbot” in the theses approved by the Court. For the company, the decision is wrong to use the word as a synonym for “artificial distribution networks”. The “chatbot”, in fact, is a program that simulates a human conversation. One of the theses approved in June by the ministers establishes that there is a “presumption of responsibility” of social networks for illicit content in two cases: paid advertisements and boosts or “artificial distribution network (chatbot or robots)”.

For the technology giant, the decision also has obscure points in relation to the requirements that extrajudicial notifications must meet to force the platform to remove content identified as illegal. The company says that the definition is “essential to avoid an industry of notifications and the overload of the Judiciary itself”.

Facebook asks the Supreme Court to establish a transition period for the implementation of certain obligations, such as the “duty of care”. The concept aims to prevent the circulation of especially serious crimes, such as terrorism, instigation of suicide and sexual crimes. “The judgment imposes duties of high technical, legal and operational complexity without any temporal discipline for their implementation, which creates a scenario of legal uncertainty and makes it impossible, in practice, to immediately meet the requirements”, argues big tech.

The ruling that expands the responsibility of big techs for content published by third parties was published by the Supreme Court last week. Upon publication, there is a deadline for filing motions for clarification, which serve to question omissions, contradictions and obscurities in the decision.

As Estadão showed, the STF ruling on the topic is considered by the Lula government as part of the range of options to regulate the sector. At Palácio do Planalto there is an assessment that the Digital Services bill (PL) (drafted by the Ministry of Justice) – the Executive’s main bet to regulate the activities of big techs, a kind of successor to the old Fake News PL – may end up not being sent to Congress. One of the reasons is that the STF ruling, in the government’s view, fills some gaps in the legislation that the Digital Services PL aimed to close.