The Attorney General's Office (PGR) opined in October in favor of hearing and granting relief to Extraordinary Appeal (RE) 1037396, in order that article 19 of Law No. 12,965/2014, the Brazilian Civil Rights Framework for the Internet, be declared constitutional by the Federal Supreme Court (STF).
In March of this year, the STF recognized, via a majority opinion, the existence of a general repercussion of the issue raised in the RE regarding the constitutionality of article 19, which 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 do not take steps to make unavailable content that is deemed infringing.
The RE was presented by Facebook after a decision by the Board of Appeals of Piracicaba (SP), which ruled out the applicability of the article and ordered Facebook to pay compensation for moral damages to the plaintiff due to its not having withdrawn content after being extrajudicially notified by the plaintiff.
The PGR maintains in its opinion that the objective of article 19 is to harmonize the application of the constitutional principles and rights of freedom of expression, inviolability of privacy, private life, honor, and image of persons.
It also explains that the objective of the article is to avoid compromising freedom of expression and free circulation of ideas, since if mere non-compliance with an extrajudicial notice submitted to the application provider demanding removal of content were sufficient for them to be held liable, the provider itself would be charged with carrying out a weighing and balancing of fundamental rights.
The PGR also points out that the Brazilian Civil Rights Framework for the Internet itself, in its article 21, makes exceptions to the rule of article 19, providing for situations in which withdrawal of the content dispenses with the need for a judicial decision in order for the provider to be held liable. Such situations are those in which celerity in removal of the content is fundamental and the filing of a judicial action is, therefore, dispensable.
The scenarios provided for in article 21 relate to the removal of content containing scenes of nudity or sexual acts of a private nature. In such cases, therefore, the internet application provider must remove the content under penalty of being considered civilly liable, in a secondary manner.
The PGR concludes its opinion in this sense, proposing to set the following theory for all other cases that deal with the constitutionality of article 19 of the Brazilian Civil Rights Framework for the Internet: “Article 19 of Law No. 12,965/2014 (Civil Rights Framework for the Internet) does not offend article 5, X and XXXII, of the Federal Constitution, which conditions breach of a prior and specific court order to remove content in order to establish the civil liability of an internet application provider for damages resulting from torts carried out by third parties."
The record of the RE is currently pending with the reporting judge, Justice Dias Toffoli, and as of now there is no date set for the trial decision.
If the STF declares the constitutionality of article 19 of the Brazilian Civil Rights Framework for the Internet, this will represent a great relief for application providers insofar as it will bring about greater legal certainty regarding the accountability of these companies in cases of removal of content from the air.
This is not the only article of the Brazilian Civil Rights Framework for the Internet whose constitutionality is debated. In 2016, the Party of the Republic (PR) filed a direct action of unconstitutionality (ADI 5527) requesting a declaration of unconstitutionality of items III and IV of article 12 of the Brazilian Civil Rights Framework for the Internet. These sections of the law deal with sanctions for temporary suspension of activities and prohibition on activities involving collection, storage, custody, and processing of records of personal data or communications by internet connection and application providers in which at least one of these acts occur in Brazilian territory, in the event of violation of certain provisions of the Brazilian Civil Rights Framework for the Internet. The record of the ADI is also pending with the reporting judge, who in this case is Justice Rosa Weber, and as of now there is no date set for the trial decision.