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-?-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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Comments on “Are Partial Liability Rules The Path Forward For Intermediary Liability Regimes? Lessons Learned From Brazil”

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9 Comments
Scary Devil Monasterysays:

Re:

Well, yes. There’s better ammunition against the US anti-230 crowd. 8kun and 4chan spring to mind.

But as things stand right now it’s going to be a race between the EU and the US to see which one will be first to jettison their IT advantage. Currently the US is leading that front by a good margin but you never know.

My prediction is that after a slew of piss-poor legislation stemming from religious zealotry, hardcore lobbying, misguided or malicious ideology and political face-saving the open internet will be dead and everyone will have migrated to the darknet where control is not possible.

After which cluster-fsck the next debate will be whether for the good of society the internet should be allowed to exist at all.

Anonymoussays:

Stupid politicians want votes what will happen is we will get the lowest common range of laws in the EU filters that block legal content fair use content and memes
See the ?k legal content will be blocked in case its unsuitable for children
Welcome to UK big brother
Politicans are competing to destroy the most valuable democratic medium ever invented
We have seen in the pandemic how vital anduseful the Web is for education work entertainment also as a source of free speech for
minoritys
The USA has a shield in that it has free speech laws that do not
exist in most country’s
There’s a reason why most startups start in america
Startups can’t afford to hire moderators to deal with stupid
and pointless laws

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