Newsletter ABPI - Edition Special Congress 2023 - Day 3


Advocating for Internet Service Providers Regulation

There was no unanimous agreement on “Internet Service Providers’ Liability before the Brazilian Supreme Court (STF)” among the participants of Panel 11, held on Tuesday, August 22. The panel featured Andrea Saad, Legal Director and Data Protection Officer at Grupo Globo, and João Brant, Secretary of Digital Policies at the Brazilian Social Communication Secretariat of the Presidency of the Republic (SECOM). The discussion was moderated by José Mauro Decoussau Machado, coordinator of ABPI’s Competition Law Committee. Despite their differences, all agreed on one point: the necessity of regulating digital platforms.

In her presentation, the Globo director weighed in on the unconstitutionality of Article 19 of the Brazilian Internet Civil Rights Framework, which seeks to “guarantee freedom of expression and prevent censorship, holding internet service providers ‘liable for damages arising from content generated by third parties if, after a specific court order, they fail to take the necessary measures, within the scope and technical limits of their service and within the stipulated timeframe, to make the indicated content unavailable.” Among the arguments presented to support her thesis, she pointed out that the legislation implies, among other things, “limitation to the protection of fundamental rights: immunity until the moment of disobedience to a court order”; and “the creation of a hierarchy among fundamental rights, privileging proprietary rights.” Andreia Saad advocated for the accountability of platforms regarding the publication of inappropriate content. “The platforms not only remain passive but driven by economic interest, proactively act to amplify this content,” she said.

The SECOM secretary acknowledged that the current model, controlled by platforms themselves, “authorizes neglect towards illegal and harmful content,” and that these companies have no “obligation of diligence over this environment.” On the other hand, he does not believe that the solution is the “complete editorial responsibility of the platforms,” and proposed regulation with preventive mechanisms for content filtering before it goes live. “We need a balance, a regulatory approach that enhances the online system, takes into account systemic risks, does not inhibit the business model, and simultaneously embraces social responsibility.”