Are Partial Liability Rules The Path Forward For Intermediary Liability Regimes? Lessons Learned From Brazil

from the marco-civil dept

The past year saw the Internet become a lifeline during the COVID-19 pandemic. But 2020 also saw increased scrutiny of online content moderation, regulation of platforms and their effects on society. While recent headlines have focused heavily on social media platforms, the conversation is much more complex: the future of the Internet as we know it depends on discussions and policies regarding intermediary liability -- the legal rule that platforms should not be liable for the content posted by their users.

Section 230 reform in the U.S. and the proposed DSA and DMA in the European Union are driving a new era of intermediary liability rule-making, and other countries have followed suit: India recently updated guidelines applicable to intermediaries, and Mexico is discussing how to ensure freedom of expression in social media platforms. Instead of letting the U.S. and Europe influence these debates, governments around the world can learn important lessons from Brazil.

With approximately 145 million Internet users, Brazil has a large and growing digital economy. There are around 10,000 ISPs operating in the country, broadband Internet is available to almost 90% of the population, and the country's Internet Exchange Point, IX.br, is one of the largest in the world. Brazil also has a strong tradition of Internet governance and policy. Since 1995, the country's "Multistakeholder Internet Steering Committee" (CGI.br) has provided technology and policy recommendations to stakeholder groups to leverage the full potential of the Internet. In 2014, the country adopted an "Internet Bill of Rights," which establishes rights and duties of individual and corporate users, businesses and the government.

Brazil has long been a pioneer in sound Internet policies and regulation and holds one of the most influential laws regarding intermediary liability not only in Latin America, but the world. The Brazilian "Marco Civil da Internet", or Civil Rights Framework for the Internet, which was approved in 2014, introduced an intermediary liability regime built upon almost two decades of practice and jurisprudence in the U.S. around CDA's Section 230.

However, Brazil decided to deviate from the path enshrined in the 1996 U.S. legal order. The Marco Civil law grants full immunity from liability to Internet access providers and clearly indicates that Internet infrastructure should not be affected by issues pertaining to the upper layers (i.e., applications layer) of the network. This law adopts a restricted and residual approach: Internet application providers are only held liable for third-party content in instances where they fail to comply with specific judicial orders to render certain content unavailable. As a general rule, private notice and take down notifications are not accepted as a means to trigger the liability system comprised in the Marco Civil. The rule however does not apply to non-consensual dissemination of intimate images and matters affecting intellectual property - the latter being subject to a specialized regime.

Perhaps the most important difference between Marco Civil and Section 230 is that Brazil has deliberately decided not to copy the "Good Samaritan" clause, meaning that the 'protection' provided by the Marco Civil in Article 19 does not grant any immunity to content moderation practices adopted by Internet application providers.

While the U.S. system encompasses ante-hoc immunity for liability from third-party content and also for a company's own good-faith behavior vis-à-vis its users, the Brazilian system covers only third-party content. In Brazil, there is no ante-hoc immunity whatsoever for harms caused by the decisions and measures taken by Internet application providers. For instance, Google was recently forced to pay compensation for "authentic ante-hoc censorship" when it applied its terms of service to remove videos from a Civil Society organization's YouTube channel. What in the U.S. would be solved by the application of the "Good Samaritan" clause, in Brazil had a different outcome.

Why should we care about Brazil's Marco Civil and why now? Around 90% of Internet users are outside the U.S. and the narrow application of the Section 230, as well as the full immunities it grants, might no longer work to guide Internet policy development elsewhere (especially considering the complex and diverse discussions related to the scope of Freedom of Speech). Also, the various proposed reforms to Section 230 in the U.S. have spilled over to other countries in very dangerous ways, including in Brazil. In their fight against Big Tech, some politicians in Brazil -emulating the behavior of US politicians- have proposed to suppress immunities that do not really exist in our legal order (as our overarching liability regime already covers issues such as the wrongful suppression of content by application providers). So, in addition to being a waste of time, these attempts are counterproductive as the country could take steps backward in Internet policy and regulation. .

The partial intermediary liability adopted by the Brazilian Marco Civil created obstacles for extrajudicial requests for content removal that throughout the 2000s helped foster legal uncertainty and very little transparency and accountability from platforms. By granting Internet applications with immunity solely for third-party behavior and content (and not for their own behavior and practices), Marco Civil contributed to increased legal predictability and fostered innovation in Brazil, as shown in by a study commissioned by the Internet Society.

The current landscape of platform and intermediary liability rulemaking marks an ethos change from previous decades. In the past, it was imperative to avoid regulating or harming the Internet through overregulation. Today regulation is no longer a taboo. However, regulation must be wise, principled-based and aimed at the correct target in the complex digital ecosystem.

Regulators must resist adopting policies that penalize the behavior of social media platforms as they ultimately punish all users who post content on these platforms. Rules aimed at social media platforms will end up impacting other types of applications for the mere fact that they operate on the same layer of the Internet. Any regulation that forces Internet infrastructure providers to enter the business of content moderation would be dangerous. The consequences for freedom of expression, innovation and a dynamic digital economy would be significant.

How governments decide to address intermediary liability in the near future is critical for users and for the Internet. We face a critical juncture where we can either get this right or get it wrong. Learning from Brazil's Marco Civil law is a step in the right direction.

Bruna Martins dos Santos is Advocacy Coordinator for Data Privacy Brazil Research and Diego Canabarro is Senior Policy Manager for the Internet Society.

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Filed Under: brazil, intermediary liability, marco civil