The Supreme Federal Court of Brazil recently accepted that the Wikimedia Foundation provide assistance as a “friend-of-the-court” (i.e., amicus curiae) in a case involving the constitutionality of platform liability protections. The Court’s decision could have negative impacts on the community-driven content moderation model that is central to Wikimedia projects. In parallel, a bill moving through the National Congress also proposes changes to the intermediary liability legal framework.
Almost 10 years after the enactment of the Brazilian Civil Rights Framework for the Internet (known in Portuguese as Marco Civil da Internet and officially as Law No. 12,965/2014), Brazil’s highest court of law, the Supreme Federal Court, will review the constitutionality of the liability protections regime for online platforms that host third-party content.
The Marco Civil da Internet is a landmark legislation that governs the use of the internet in Brazil by establishing important guarantees such as net neutrality, safe harbors for online service providers, and the exercise of civil rights online. The challenged standard is article 19 of the law, which provides online platforms with a certain degree of protection in relation to the content posted by users. This provision ensures that, as a general rule, platforms may only be held liable for failing to comply with a court order to remove content. If the Article is held to be unconstitutional, liability for online hosts of third-party content could be triggered more easily.
The Supreme Federal Court’s examination of the standard was prompted by two lawsuits, filed against Facebook Brazil and Google Brazil, referring to content removal requests. Although the cases reached the higher court in 2017 and were initially set to be discussed in 2020, the proceedings were stalled for years due to the COVID-19 pandemic. However, the anti-democratic riots that took place in Brasília on 8 January 2023 have since motivated governmental bodies to increase efforts to curb the spreading of disinformation and extremist content online. Against this backdrop, the Supreme Federal Court will evaluate whether the legal standard for platform liability protection holds up against the fundamental rights enshrined in the Brazilian constitution.
The Wikimedia Foundation abides by strong human right commitments and in no way approves of acts of violence against private or public individuals or institutions. Nevertheless, we urge caution when addressing regulations that encompass all kinds of internet platforms, and we strongly advocate against “one-size-fits-all” approaches. In this light, the Foundation has taken the opportunity to file a friend-of-the-court brief in order to draw attention to alternative content moderation and platform governance models.
In March 2023, the Court held a public hearing where the Foundation highlighted the uniqueness of the decentralized community-run governance model that lies at the core of Wikimedia projects. This model, which empowers volunteers from around the globe to actively create, share, and curate knowledge, is enabled by legal provisions that safeguard online platforms from liability. Without these safeguards, platforms could be forced to centralize all decisions related to content creation and moderation in order to mitigate legal risks.
If there are no civil liability protections for platforms with regard to content uploaded by users, platforms could be subject to a high volume of lawsuits seeking damages. For nonprofit platforms like the Foundation, the consequences could be dire and pose an existential threat to the volunteer-run model of Wikimedia projects. As the constitutionality of Article 19 of the Marco Civil da Internet is analyzed by the Court, the Foundation urges that individual rights be appropriately weighed against the right to freedom of expression and information, which is crucial to ensure that collaborative free and open knowledge projects in the public interest are not unduly harmed.
The case is expected to go to trial in the following months. As judicial discussions advance, the Foundation will continue to speak up for the protection of free and open knowledge projects.
In addition to the court case, a proposed law may also modify the intermediary liability legal framework
While the case goes to trial, the proposed Brazilian Internet Freedom, Accountability, and Transparency Law (PL2630)—known colloquially as the “Fake News Bill”—has gained urgency in the legislature. This legislative initiative, which aims to increase transparency and accountability of social media platforms, search engines, and instant messaging services in Brazil, was introduced as a response to the wave of disinformation that tainted the country’s 2018 general elections, and has been under discussion since 2020. It regained momentum due to several events this year that brought the crucial role of digital platforms in moderating harmful content back to the center of public debate. However, the discussion of this bill is taking place in the context of high political confrontation in Brazil, where various stakeholders are using highly contested tactics to heatedly clash in the public forum.
If this legislative proposal is adopted, large for-profit platforms would be required to: carry out risk assessments and mitigation; take actions to prevent and mitigate the dissemination of illegal content; establish a due process in the moderation of content; apply a crisis protocol; publish transparency reports; and, conduct external audits on the application of the law, among others. Although all is yet to be decided, the bill has the potential to modify the intermediary liability protections established in the Marco Civil da Internet. However, what the outcome of this bill will be, given the heated political context in which this debate is taking place, remains to be seen.
What does appear certain is that, whether at the legislative or judicial level, the intermediary liability regulatory framework in Brazil will undergo changes. We hope that the changes in question will not have adverse effects on the Wikimedia model and projects. We are confident that the safeguards that Wiki Movimento Brasil—with the support of the Foundation—has advocated to be included in the text of the bill will help continue to protect the community-led content governance and moderation model.
The Foundation will continue to monitor the developments in Brazil and, in due course, will share an update in a follow-up Diff blog post.
—Daniella Ferrari, Privacy Fellow for Latin America & the Caribbean, and Amalia Toledo, Lead Public Policy Specialist for Latin America & the Caribbean, 20 June 2023
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