The Internet Civil Landmark (Bill 2126, of 2011), just approved by the National Congress, regulates the use of the internet in Brazil and extensive discussions are being held on issues that will certainly generate practical consequences to consumers and companies. While the draft Bill was under preparation, a process that had the active participation of all sectors of the Brazilian society, it became clear that one of the most controversial issues was the implementation of a voluntary mechanism that might secure the internet service providers' exemption from liability for contents generated by third parties.
In an attempt to accommodate the interests of all the sectors involved as well as submit a proposal that might be technically feasible and did not violate the Civil Landmark's fundamental principles, the Bill provided that internet connection providers are exempt from any liability for the content published by third parties, whereas internet application providers may be held liable if, after having received a specific court order, they fail to remove the violating content from the internet.
As it can be observed, the Civil Landmark opted for differentiating connection providers (i.e., those providing connection services) from application providers (i.e., those providing functionalities that may be accessed by means of an internet connection).
In principle, none of them will be held liable for content generated by third parties, however, while the immunity of connection providers cannot be ruled out, the immunity of application providers depends on the their compliance with court orders for removal of certain contents.
In regard to connection providers, since they only transmit information and do not make the editing of the contents published, it seems to us that the casual link is entirely absent; hence, they cannot be held liable for such contents.
More controversial is the establishment of service providers' liability.
Providers that make the editing of contents generated by third parties are excluded from this analysis, because, in this case, the establishment of their liability seems evident to us. Since they had the chance of editing the contents before their publication, the causal link seems clear to us - even if the Civil Landmark has not made such distinction.
The controversy lies in the establishment of liability of providers that do not make any prior editing as, for instance, social network providers.
In those cases, the information is immediately published, without any filtering. In reviewing our civil liability system, is it possible to admit the establishment of providers' liability? We do not think so, because there will be no causal link.
The society, however, needs an instrument to solve the problem of dissemination of illegal or offensive contents on the internet, and there are not any other means of directly holding the author's liability than by means of service providers that are, technically speaking, the only ones able to identify them.
In view of that deadlock, the Civil Landmark's option seems correct to us: the content provider continues exempt from liability - what seems right in view of the lack of a causal link - but, on the other hand, such condition will only prevail if the providers comply with specific court orders for removal of the inappropriate content from the internet. The sole exception to this rule is the case of images featuring nudity or pornographic content: in those cases, the content will be removed upon a simple notice.
Concerning users' liability, the only determination is that the provider shall inform them about the compliance with a court order. At the same time, there is a further determination that the provider must keep users' postings and immediately supply that information whenever they are requested to do so under a court order.
This subject is controversial and it is not our intention to exhaust it here, but, again, we agree with the Civil Landmark's option. First, because despite the fact that the Federal Constitution protects the privacy and freedom of speech, it does not allow anonymity. Second, because the internet is not a private, but a public space.
In our view, the users' freedom of speech and privacy are secured, given that they have the possibility of posting any content on the internet. However, as soon as the publications become illegal or offensive, their liability has to be established and, technically, this is only possible if the providers are allowed to keep the users' postings. The case law, by the way, has been establishing at least the providers' obligation to identify the users that created inappropriate contents.
It should be highlighted that the Civil Landmark determines that the postings have to be kept for a year and may only be supplied to the Judiciary upon a specific court order to secure the users' privacy.
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