Brazil: Civil Liability Of Internet Service Providers: The Emerging Of A More Liberal Legal Framework

Last Updated: 29 October 2013
Article by Fabio Celli and Cláudio Mattos

The purpose of this article is twofold. First, to summarize the current legal treatment of "Civil Liability of Internet Service Providers." Second, to discuss briefly the impact of the pending change that will result if the proposed Bill No. 2,126/2011 becomes law when the National Congress votes on the matter later this month.

For the purpose of this article, despite the many categories of internet service providers, it is only important to distinguish between two of them: (a) the "connection providers", who enable users to be connected to the global network; (b) the creators of the facilities that enable users to generate their own content, who will be specifically referred to in this article as the "contents providers". An example of connection providers are the telecommunications operators, whereas Facebook is a well-known example of a content provider.

When we say that a certain category of internet service provider is "civilly liable", we mean that should a service provider or any of its customers cause damage to a third party, it will be obliged to pay any settlement that the Court awards to the injured party--not only for material but also for moral damages.

Current status

Under the current legislation, as a general rule the connection providers can be civilly liable just for the defects of its own services, but not for damages to third parties solely caused by users of its services. This is because in thesis the connection provider gives its customers the means for them to have access to the internet but it does not make available any specific content to such users/customers. However, should its conduct contribute to the damage (for instance, allowing third parties to access data transmitted by users of your network/resources without knowledge by those users), it will be held liable under the law.

Another example of this eventual liability may be found where connection providers are silent about third parties actions through its network/resources. One case under current discussion is regarding spam. The lawmaker established as the consumer's basic right the protection against deceptive and abusive advertising, as well as against coercive or unfair business practices. There are bills being discussed in the Brazilian Congress, seeking to limit the sending of spams, some of them with impositions on providers to block spams, some of them imposing sanctions to those selling databases, etc.

On the other hand, pursuant to the majority of the court decisions that deals with the matter, content providers may be liable for the damages caused by its customers to third parties if the offended person notifies the content provider--judicially or extra-judicially--to remove the content generated by the service provider's client and if said provider fails to delete the content immediately. The majority of the courts, including the Superior Court of Justice, understands that if the content provider refuses to remove content in question (or fails to removes it promptly), then the provider and its customer will be jointly liable for the damages caused to the offended person.

The courts further state that content providers are not obliged to filter the information published by its customers, because one of the main features that makes the internet an attractive means of communication is the possibility to release information in real time. However, the courts maintain that content providers must be ready to identify each of its customers whenever a claim is made against any of its subscribers' publications.

As recently as October 3, a judge in the São Paulo City Court ruled that Facebook must remove a user's post that had many offensive comments about another user. Facebook was given 48 hours to delete the post or have public access to Facebook completely blocked.

The above ruling is not in line with a recent decision of the European Human Rights Court. There, a news portal called Delfi has been held civilly liable for comments published by its readers, which caused moral damages to the owner of a ferryboat company. In accordance with the decision--which, under appeal, is still subject to revision by a higher court--the condemnation of Delfi is reasonable, because the offended person would have no other recourse since it would be impossible to identify and make a claim for damages against each of the offending commentators. It is important to note that the Court applied the indemnification claim entirely against the news portal, and it was enforced without considering whether or not Delfi had removed the offending content.

This trend shows that it is vitally important content providers create systems assuring the identification of each customer and must put in place precise information filters, i.e., capable of detecting content that may offend third parties, the use of vulgar language notwithstanding.

Future status

Civil liability of the internet service providers for the damages caused by the contents generated by third parties is one of the most important matters treated in the above-mentioned Bill of Law No. 2,126/2011.

If this Bill, in its current wording, is passed by the National Congress, connection providers will not be liable for damages derived from contents produced by third parties.

The contents provider, however, may be liable solely in cases where there is a specific judicial order determining that the contents provider is to remove the content generated by its customer and the contents provider failed to delete the content within the timeframe set by the judicial order.

The crucial difference between the current law and the change under consideration is that whereas presently the contents provider is obliged to remove the content after a simple extra-judicial notification from the offended person, under the pending Bill of Law No. 2,126/2011, the contents provider will be obliged to remove the content only and exclusively by a specific judicial order that locates and identifies clearly the content to be removed.

This is significant because it shows that Brazil, more than protecting the rights of honor and of privacy, is moving in the direction of a legal regime aimed at protecting freedom of speech.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions