The Federal Supreme Court (STF) recognized, by a majority of votes, the existence of general repercussion of the issue raised in Extraordinary Appeal (RE) 1037396, regarding the constitutionality of Article 19 of Law No. 12,965/2014, popularly known as the Brazilian Civil Rights Framework for the Internet. The article determines that internet application providers may only be held civilly liable for damages arising from content generated by third parties if, after a specific court order, they fail to take measures to remove the infringing content.
The extraordinary appeal in question originated in a lawsuit to delete a fake profile created by third parties on the social network Facebook using the plaintiff’s name and images. The lawsuit also sought a judgment against Facebook for moral damages. The plaintiff alleges that she had already asked Facebook to remove this fake profile through the report tool provided on the social network, but Facebook allegedly failed to act, and for this reason the plaintiff requested payment of compensation for the moral damages suffered.
At the trial level, the Special Civil Court of the District of Capivari (SP) decided to grant in part the relief sought in the suit, thereby granting only the petition to remove the fake profile and accepting Facebook’s arguments regarding compensation for moral damages.
This is because, according to Article 19 of the Brazilian Civil Rights Framework for the Internet, the court ruled that in order to hold internet application providers accountable for damages resulting from content generated by third parties, it would be necessary for them to disobey a specific court order, not just a mere notice by the user. In this sense, as alleged by Facebook, it is incumbent exclusively on the Judiciary to make value judgments as to what goes outside of or beyond the limits of freedom of expression and expression of thought, under penalty of suppressing users' constitutional rights and engaging in censorship.
Thus, the court ruled that Facebook should not be ordered to pay compensation for moral damages, since it removed the fake profile as soon as it was notified of the judicial decision granting the preliminary injunctive relief and ordering removal of the content.
In addition, the court affirmed the understanding defended by Facebook that, as a provider of internet applications, the company has no legal duty to exercise any supervision or preventive control over the content made available on its platforms, since the first paragraph of Article 19 of the Brazilian Civil Rights Framework for the Internet states that removal of content is conditioned on a specific court order indicating the respective URLs of the content to be removed.
After appeals filed by the parties, the Appellate Panel set aside the judgment handed down by the lower court so as to grant the plaintiff's petition for a judgment against Facebook ordering it to pay compensation for moral damages. This was because, in the opinion of the Appellate Panel, for the purposes of compensation, conditioning the removal of the fake profile on a specific judicial order would mean exempting application providers from any and all liability for damages. It was said to be the same as making a dead letter out of the protective system created by the Consumer Defense Code, in view of the fact that it would nullify the basic right of the consumer to effectively prevent and remedy individual, collective, and diffuse tangible and intangible damages, as provided for in Article 6, item VI, of the Consumer Defense Code.
In this context, the Appellate Panel understood that, contrary to the protective system provided by the Consumer Defense Code, Article 19 of the Brazilian Civil Rights Framework for the Internet is contrary to the precept provided for in Article 5, item XXXII, of the Federal Constitution, according to which the State has the duty to promote consumer protection in accordance with the law. In addition, the Appellate Panel noted that compelling the victimized consumer to go to court to obtain removal of infringing content would violate the fundamental rights to intimacy, privacy, honor, and image provided for in Article 5, item X, of the Federal Constitution.
Accordingly, it was understood that article 19 of the Brazilian Civil Rights Framework for the Internet should not be applicable, and the right to compensation for moral damages claimed by the plaintiff as a result of Facebook's inaction was recognized, which was equated by the Appellate Panel with the provision of defective services, thus resulting in strict liability of the provider, per the terms of Article 14 of the Consumer Defense Code.
Faced with this, Facebook filed an extraordinary appeal in order to set aside the order to pay moral damages, as well as to obtain recognition of the constitutionality of Article 19 of the Brazilian Civil Rights Framework for the Internet, on the basis of general repercussion of the matter. Facebook argued, in short, that the article resulted from a conscious choice of the legislator, which, after much democratic debate with civil society, conducting a balancing test between the constitutional principles involved and opted to privilege freedom of expression and repudiation of censorship, to the detriment of possible violations of honor, image, and intimacy.
Facebook also pointed out that both the Consumer Defense Code and the Brazilian Civil Rights Framework for the Internet are federal laws and therefore have the same hierarchical rank. Nonetheless, since it is a specific and subsequent law, it was argued the Brazilian Civil Rights Framework for the Internet should prevail over the Consumer Defense Code regarding the liability of internet application providers. In addition, Facebook emphasized that this prevalence of the Brazilian Civil Rights Framework for the Internet over the Consumer Defense Code would not mean the derogation of conquests of consumers, considering that the Brazilian Civil Rights Framework for the Internet itself is also based on consumer protection, as expressly stated in its Article 2, item V.
That said, the Federal Supreme Court (STF) acknowledged the existence of general repercussion, because on the grounds that the matter discussed has unequivocal transcendence and relevance due to the importance and the reach of social networks and Internet application providers in the present day, and because it involves a clash between constitutionally protected principles.
The Federal Supreme Court (STF) also highlighted that this case differs from Topic of General Repercussion No. 533, which also deals with the duty of a website hosting company to inspect published content and remove it from the air when it is considered offensive, without the intervention of the Judiciary, since Topic No. 533 deals only with facts that occurred prior to the enactment of the Brazilian Civil Rights Framework for the Internet, while the present case guides the judgment of all cases after its entry into force and will give the Federal Supreme Court (STF) the opportunity to review the constitutionality of Article 19, which is now being challenged.
Decisions on these broad-based issues may differ from one another in view of a change in the case law resulting from the adoption of the Brazilian Civil Rights Framework for the Internet. That is, prior to the Brazilian Civil Rights Framework for the Internet, there was established case law that application providers should remove allegedly infringing content immediately upon receipt of simple notice sent by users, under penalty of joint and several liability with the direct perpetrator of the damage. However, this understanding was changed after the entry into force of the Brazilian Civil Rights Framework for the Internet, which required a prior and specific court order to remove content in order for the application providers to be held liable. In this manner, it is possible that the Federal Supreme Court (STF) may apply different rules to cases occurring before and after the enactment of the Brazilian Civil Rights Framework for the Internet.