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

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.