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What are you liable for?

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24 octobre 2016

As you can probably remember, one of the most relevant facts that led to Brazilian internet regulation was the recording of some intimate moments of a top model at the beach (if you are unfamiliar with this case, take a look here). The upload of such video on Youtube’s website triggered a national discussion on intermediaries’ liability, given that we had no rules, at that time, that could clearly define if Youtube was somehow liable – and to what extent, if so – for the distribution of the recording. 

After seven years of discussion, Brazilian National Congress finally passed, Brazil’s Internet Bill of Rights, known ad the “Marco Civil da Internet”. As one can easily imagine, defining liability for damages caused by content produced by third parties was crucial in such context. After all, the inexistence of clear rules and definitions was resulting in conflicting, and many times competing judicial decisions, as well as reckless interpretations of the law, such as the one in which a blogger was found guilty due to a comment written by one of his readers. 

During the discussion of the bill, the first system suggested in order to deal with intermediaries’ liability was the notice and takedown, inspired by American law. However, civil society sharply criticized this option because it was considered an open door to private censorship. Indeed, if websites were deemed liable for third parties’ content after extrajudicial notices, they would most certainly remove the controversial content without further examination. Such was the reason why, during the discussion of the text of the bill, this hypothesis was replaced by the removal of material after receiving a judicial order. Article 19 of Brazil’s Internet Bill of Rights establishes such system clearly:

Art. 19. In order to ensure freedom of expression and to prevent censorship, internet application providers may only be held civilly liable for damage resulting from content generated by third parties if after specific judicial order the provider fails to take action to make the content identified as offensive unavailable on its service by the stipulated deadline, subject to the technical limitations of its service and any legal provisions to the contrary. 

On the other hand, judges are already overloaded by work and waiting for a judicial decision in order for an intermediary to be held liable would be, in some cases, not only inefficient but also unfair. This is why the law foresees at least one possibility of notice and takedown, after which the intermediary becomes liable, notwithstanding a court’s decision:

Art 21. Internet application providers that make available content created by third parties will be secondarily liable for violations of privacy resulting from the disclosure, without the participants’ authorization, of images, videos and other material containing nudity or sexual acts of a private nature, if, after receiving notice from the participant or the participant’s legal representative, the internet application provider fails to take prompt action to remove the content from its service, subject to technical limitations of the service.  

As we can see, legislators considered that such cases require fast results. When we are talking about acts of private nature, it is not only a matter of goods, money and patrimonial interests.  It is the human dignity that is in danger and must be protected. For this reason, the law contains this exception. It is important to note, however, that a website is not forbidden to remove a content considered offensive or that violates its terms of use out of its own accord. The removal can always take place. Nevertheless, the intermediary will be liable only after judicial order, unless the content relates to the ones described in Article 21.

This is not the only exception, though. The other one relates to copyright. But copyright is such a complex subject that it requires a legislation of its own and, consequentially, a blog post as well.

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