Abstract
This article examines the controversies involving the clash between personality rights in cyberspace and freedom of expression, especially in relation to the new rules of the Brazilian Civil Rights Framework of the Internet (Law 12.695) and its consequences to the problem of civil liability of Internet providers in connection with harmful content generated by third parties. The regime is extremely restrictive, which represents an undeniable setback when compared to the path that was being trod by Brazilian case law on this matter. In this context, this article analyses the “specific court order” requirement mentioned by Article 19 of the Civil Rights Framework of the Internet to set the civil liability of Internet providers in contrast to the general discipline of civil liability. The compatibility of Article 19 with the Brazilian Constitution is also discussed, in light of the fundamental rights of the human being in cyberspace.
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Notes
- 1.
Superior Court of Justice—STJ—Special Appeal No. 566468/2004, Reporter Justice Jorge Scartezzini, 11.23. 04. Plaintiff’s name was changed to prevent her identification.
- 2.
Court of Justice of the State of São Paulo [TJSP]—Civil Appeal No. 0173842-95.2012.8.26.0100/2014, Reporter Associate Justice Beretta da Silveira, j. 01.21.14. Check also the article: Oliveira (2014). Plaintiff’s name was also changed here to prevent identification.
- 3.
Accordingly, see Lévy (1999), p. 167: “Cyberspace, interconnection of the planet’s computers, tends to become the main infrastructure of economic production, transaction and management. Soon, it will be the main piece of international collective equipment of memory, though and communication. In short, in approximately tens of years, cyberspace, its virtual communities, reserves of images, interactive simulations, its irresistible proliferation of texts and signs, will be the essential mediator of humanity’s collective intelligence.”
- 4.
Bauman (2008), p. 138.
- 5.
Still in the author’s words: “In searching for successful self-identification, self-manipulative individuals maintain quite an instrumental relationship with their interlocutors. The latter are only admitted to attest to the existence of the manipulator—or, more exactly, to allow manipulators to make ‘their virtual counterparts’ face reality.” (Jauréguiberry (2004), p. 6).
- 6.
Frank T (2004) Le Marché de Droit Divin. Paris, Lux, apud Bauman (2008), p. 138.
- 7.
Bauman (2008), pp. 139–140.
- 8.
Bauman (2008), p. 137.
- 9.
Clarke (2013).
- 10.
An example of this attitude is in the regrettable decision of the 4th Panel of the Superior Court of Justice—STJ, Special Appeal No. 844736/2009, Reporter Justice Honildo Amaral de Mello Castro, 20.27.09, where it was concluded that sending spam after express request not to receive it characterizes moral damage; it is up to the user to contract an antispam service (Justice Luis Felipe Salomão was defeated, by a substantial vote). One of the Justices who accompanied the prevailing understanding even affirmed: “Spam is something to which the Internet user is submitted. At this point, I don’t see how we can untie use of the Internet from spam.” (‘4th Panel does not recognize Non-Pecuniary Damage for sending erotic SPAM to an Internet user’, Superior Court of Justice—November 03, 2009, https://scon.stj.jus.br/SCON/GetInteiroTeorDoAcordao?num_registro=200600946957&dt_publicacao=02/09/2010. Accessed 11 Jan. 2022.
- 11.
Roppo (1988), p. 38.
- 12.
And concludes: “Indeed, all of these companies talk about their businesses in the language of free speech. Google’s official mission is ‘to organize the world’s information and make it universally accessible and useful.’ WordPress.com’s corporate mission is to ‘democratize publishing.’ Facebook’s is to ‘give people the power to share and make the world more open and connected’.” (Ammori (2014), p. 2260).
- 13.
This Romanticism is well represented in the famous Declaration of Independence of Cyberspace, written in 1996 by John Perry Barlow, who, among other points, affirmed: “We are creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth. We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity. Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.” (Barlow (1996)).
- 14.
In such respect, it is interesting to note how liberal thinkers, who defended the absence of intervention of the State-norm on the Internet, started to denounce as a kind of “censure” the norms created by the virtual communication companies and applied purely privately, without the disclosure and transparency which characterize the state-legislative branch. See, on this instigating theme, Heins (2014).
- 15.
Accordingly, the 3rd Panel of the Superior Court of Justice—STJ had already decided, in 2012, that: “The fact that the service provided by the provider of Internet service being free does not depreciate the consumer relation, as the term ‘by remuneration’, contained in Article 3, §2, of the CDC [Civil Law Code] must be interpreted broadly, so as to include the indirect gain of the supplier” (Superior Court of Justice—Special Appeal No. 1308830/2012, Reporter Justice Nancy Andrighi, 05.08.12).
- 16.
See, for illustration, Court of Justice of the State of Rio de Janeiro (TJRJ)—Civil Appeal No. 0006047-50.2009.8.19.0040/2009, Reporter Associate Justice Benedicto Abicair, 12.01.09.
- 17.
Court of Justice of the State of Rio de Janeiro—Civil Appeal No. 2009.001.14165/2009, Reporter Associate Justice Alexandre Câmara, 04.08.09. Excerpt extracted from the vote of Reporter, accompanied by his peers.
- 18.
Court of Justice of the State of Rio de Janeiro—Civil Appeal No. 2009.001.41528/2009, Reporter Associate Justice Ernani Klausner, 03.09.09.
- 19.
Superior Court of Justice—Special Appeal No. 1.117.633/2010, Reporter Justice Herman Benjamin, 03.09.10. Note that the situation is analogous to what already happens outside the virtual world, in the provision of services, which may be manipulated by third parties to generate damage to users, as in the case of registration in the credit protection services for debt contracted with false documents, a case which the STJ already decided to fall within the sphere of responsibility of the contracting financial institution, even if only belatedly such institution becomes aware of such documental falsification of documents: “The action of persons without scruples specialized in acquiring credit cards with the name and taxpayer identification number [CPF] of a deceased person to acquire a credit card and use it until it is suspended for default on invoices has become commonplace. (…) The credit card administrator which normally executes its contracts by phone or Internet, without requiring the physical presence of the consumer who is the user of the credit card only becomes aware of the fraud when it deflagrates the extrajudicial collection procedures. The case law of this Court is settled to the effect that the undue indication of the name of consumer in credit protection bodies produces non-pecuniary damages, generating the obligation to indemnify for those who make the registration.” (Superior Court of Justice—Special Appeal No. 1.209.474/2013, Reporter Justice Paulo de Tarso Sanseverino, 10.09.13).
- 20.
Court of Justice of the State of Rio de Janeiro—Civil Appeal No. 2008.001.04540/2008, Reporter Associate Justice Horácio dos Santos Ribeiro Neto, 25.03.08.
- 21.
The Digital Millennium Copyright Act (Public Law No.: 105-304/1998) regulates in detail, in its Title II (referred to as Online Copyright Infringement Liability Limitation), the procedure of notification and counter-notification, in addition to measures, which must be followed by providers to to be entitled to limitation of liability. See particularly Section 202, which brings substantial modification to § 512 of Chap. 5 of Title 17 of the United States Code, compilation of federal rules of a general and permanent nature.
- 22.
Check, in this respect in particular, the prevailing vote in a court decision of the Court of Justice of Rio de Janeiro, in which it was affirmed that the doctrine of the notice and takedown is diverted from Brazilian legal tradition, for which “damage happens at the time of publication, the theory of the learned prevailing vote that the plaintiff should first request the removal of the page not being valid, as this mere step does not elide the loss already sustained. There is not in our Law an offense which is not subject to indemnification” (Court of Justice of the State of Rio de Janeiro—Civil Appeal No. 2008.001.56760/2008, Reporter Associate Justice Otávio Rodrigues, 12.03.08).
- 23.
See https://lumendatabase.org/, official page of the Lumen Project, an initiative developed jointly by the Electronic Frontier Foundation and prestigious American universities (Harvard, Stanford, Berkeley etc.) with the declared objective of enlightening the public and preventing the legislation of the United States (especially the system of notice and takedown) from being used abusively to “cool off” the exercise of freedom of expression on the Internet. (Lumen is a Project of the Berkman Klein Center for Internet & Society at Harvard University. [website], 2017, https://lumendatabase.org/pages/about. Accessed 11 Jan. 2022.
- 24.
See .S. Code, Title 17, Chapter 5, Section 512, especially Section 512 (c) (3)—on the requirements of the notice –; and Section 512 (g) (2) e (3)—on counter-notice and terms of activity.
- 25.
On the issue, let one be allowed to refer to Schreiber (2014b), pp. 209–215 and 231–243.
- 26.
§1 of Article 19 expands even more this room for defense by affirming that the judicial order mentioned in the main section of the provision “must include, under penalty of being null, clear identification of the specific content identified as infringing, allowing the unquestionable location of the material”.
- 27.
On the theme, see item 7, below.
- 28.
Constitution of the Republic, “Article 5. (…) XXXV—the law shall not exclude from appreciation by the Judiciary damage or threat to a right.”
- 29.
Accordingly, it should be mentioned that Regulation Act No. 7962, of March 15, 2013, which disciplines electronic commerce, determined that “websites or other electronic means used to offer or for conclusion of a consumption contract must make available, in a prominent place, and easy to visualize: (…) II—physical address and email, and other information necessary to its location and contact.”
- 30.
Derbli (2007).
- 31.
- 32.
Civil liability here is not secondary, but proper and direct, because it derives from the absence of activity of the provider after becoming aware of the fact. The use of the expression “secondary” must be interpreted as mere reinforcement of the idea that the provider here is answering for the content transmitted by a third party, but technically it is the own and direct liability, not secondary. So that there is no doubt, it is not necessary for the victim to file a lawsuit or take any attitude in relation to a third party—who, frequently, cannot even be identified. It may act directly against the provider of applications who fails to make the content unavailable, whether to compel him to do so, or to obtain proper reparation for damages resulting from exposure of the material in the period spanning from the notification to effective removal.
- 33.
Although he was not express with respect to the extrajudicial nature, the legislator alluded here to mere “notification”; the interpreter shall not restrict the term to extrajudicial notifications, especially if compared to the speech of Artcle 21 with that used in Article 19 of the same Federal Statute No. 12965/2014.
- 34.
“Article 20. (…) Sole Paragraph. When requested by the user, who provided the content made unavailable, the provider of Internet applications that carries out this activity in an organized, professional manner and for economic purposes, shall replace the content made unavailable for a note of explanation or with the text of the court order that gave grounds to the unavailability of such content.”
- 35.
On the subject, let it be consented to refer to Schreiber (2014a), pp. 172–174.
- 36.
Court of Justice of the State of São Paulo—Summary Proceedings No. 0192672-12.2012.8.26.0100/2012, 1st Civil Court—Central Civil Venue, assigned on 09.18.12.
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Schreiber, A. (2022). Civil Rights Framework of the Internet (BCRFI; Marco Civil da Internet): Advance or Setback? Civil Liability for Damage Derived from Content Generated by Third Party. In: Albers, M., Sarlet, I.W. (eds) Personality and Data Protection Rights on the Internet. Ius Gentium: Comparative Perspectives on Law and Justice, vol 96. Springer, Cham. https://doi.org/10.1007/978-3-030-90331-2_10
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