Proposed Internet Regulation in Brazil Might Curb Online Speech (Guest Blog Post)

by Guest Blogger Marcel Leonardi

[Marcel Leonardi is an attorney in São Paulo, Brazil, and Professor of Law at FGV-SP. He was a Google Policy Fellow in 2009, working with the international team at the Electronic Frontier Foundation. He has published articles and books in Brazil about ISP liability, online privacy and other Internet law issues. He can be reached at marcel@leonardi.adv.br, or follow him at Twitter.]

[Eric’s introduction: notice-and-takedown schemes are generating lots of discussion. We’ve repeatedly seen problems with the notice-and-takedown scheme in copyright law (see, e.g., Wendy Seltzer’s latest article), yet advocates keep evangelizing it as the solution for a range of unwanted content (see, e.g, Rep. McCotter’s ill-fated proposal). Marcel has generously agreed to update us on a brewing notice-and-takedown initiative in Brazil.]

Brazil lacks a specific legal framework regarding the Internet. In order to create one, a collaborative process has been organized by the Ministry of Justice and the Center for Technology and Society from FGV-Rio. After a period of 45 days when anyone could suggest what this legal framework should encompass, the organizers have now published a draft of a bill, which is open for comments here.

The process has been touted as an unique collaborative approach to public policy. As far as allowing anyone to comment and discuss the draft online, it is indeed very democratic. Sadly, the same cannot be said of the bill itself.

The main issue is that the proposed legislation has the potential to curb online speech dramatically. It creates a notice and takedown system that allows any person or company to demand that any kind of online content is taken down.

In a nutshell, this system would work like this:

a) upon receiving a valid complaint, an intermediary must take down the questioned content “within a reasonable period”;

b) after the content is offline, the intermediary must notify the user responsible for the content, explaining the removal;

c) the user can either accept the removal or claim full responsibility for the content, in which case he or she can send a counternotice and demand that the intermediary puts the content back online;

d) if the intermediary receives no answer or cannot reach the user, the content remains offline;

e) any other person or company can also claim full responsibility for the content in place of the user, send a counternotice and demand that the intermediary puts it back online. Doing so subjects this person or company to the same legal risks and consequences the user would face;

f) if the intermediary fails to follow this procedure, it will be liable for the third-party content.

This system stems from articles 20-24 of the bill, which state the following:

Art. 20 An Internet service provider shall only be held responsible for damages resulting from content created by a third party if it has been notified by the injured party and has not taken measures to render unavailable (within the scope of its services and within a reasonable period) the content identified as infringing.

1. Internet service providers must offer in a conspicuous manner at least one electronic means of receiving notices and counternotices.

2. An Internet service provider is allowed to create an automated mechanism to respond to the proceedings provided by this section.

Art. 21. On penalty of invalidity, the notice contemplated by article 20 must contain:

I – the identity of the complainant, including complete name, identity and tax registration numbers, and current contact information;

II – date and time of transmission;

III – clear and specific identification of the content claimed as infringing, permitting the unambiguous location of the material by the recipient of the notification;

IV – description of the relationship between the complainant and the

content described as infringing; and

VI – legal justification for removal.

Art. 22. Upon making the content inaccessible, the service provider shall be responsible for informing the user responsible for the publication of this fact, advising the user of the substance of the complaint and establishing a reasonable period for the complete

elimination of the content.

Provided. If the user responsible for the infringing content is not identifiable or cannot be found, but all the required elements for the validity of the notice are present, the service provider is responsible for maintaining the blockage.

Art. 23. The user responsible for the publication may, following the requirements of article 21, counternotify the service provider, requesting the continued availability of the content and assuming exclusive responsibility for the eventual damages caused to third parties, in which case the service provider will have the duty to re-establish access to the content to which access was disabled and inform the complainant of the re-establishment of access.

Provided. Any other interested party, whether a natural or legal person, following the requirements of article 21, may counternotify the service provider, assuming responsibility for the maintenance of the content.

Art. 24. A complainant as well as a counternotifier shall have responsibility according to law for false or erroneous information and for abuse or bad faith.

My concern is that a notice and takedown system that can be used for any kind of content, like this one, will quickly become a tool to chill legitimate speech. So far, in the absence of regulation, Internet intermediaries in Brazil are free to take down content if they deem it inappropriate or if said content violates their terms of service. Outside of those situations, however, a court order is necessary to take down the alleged harmful content. After a prima facie analysis, judges can grant or refuse to grant an injunction for content removal, depending on the nature of the questioned content and the rights at stake.

Even though the judicial system is far from perfect, Brazilian judges have been exercising great care when analyzing lawsuits demanding online content to be taken down, refusing to grant injunctions that would affect legitimate, yet unwanted, speech.

Therefore, under the current system – created by legal doctrine and precedent – a lot of controversial, critical and political speech stays online in Brazil because those interested in its removal are very aware that judges would probably never grant injunctions to take it down. Frivolous and petty requests are not even filed, since whoever loses a lawsuit in Brazil must pay reasonable attorneys’ fees awarded by the judge. Other would-be plaintiffs give up, fearing the ever increasing “Streisand effect” – when the questioned content becomes “viral” and hugely popular precisely because it was questioned – which is an even bigger issue when an injunction is denied and news of the lawsuit reach the public (a situation that often leads plaintiffs to quickly ask the court for dismissal, before the defendant even knows about the lawsuit).

American readers should also bear in mind that, contrary to the situation in the United States, in Brazil it is neither too complicated nor too expensive (at least in comparison to American standards) to file a lawsuit demanding content to be taken down. In fact, under certain circumstances, such lawsuit can even be filed directly by the alleged victim in a small claims court at little to no cost. This partially explains why the Brazilian numbers are so high in the recent statistics about content removal and data requests that were published by Google, as these numbers include court orders for the removal of content, which often originate from private-party disputes, as explained here.

In summary, Brazilian victims of real online harms can find appropriate redress and take down content via the local judicial system. However, if this bill becomes law, I fear that this notice and takedown system will be heavily abused, as people and companies will then have a channel where they can send all of their previously unfiled frivolous, petty and abusive requests. All they have to do, after all, is complain to the intermediary, which must take the questioned content down to avoid liability.

This approach is significantly more problematic than the notice and takedown system established in the European Union by the e-commerce Directive (2000/31/EC). According to the Directive, hosting providers in the European Union are only required to remove content after being “aware of facts or circumstances from which the illegal activity or information is apparent”. This requirement does not exist under the proposed Brazilian system: all requests for content removal must be accepted, regardless of the legality of the content, or else intermediaries risk liability.

On the other hand, even if users are made aware of their ability to dispute the removal of their content, it is easy to see that many will not be willing to take the risk, even if there is nothing wrong with such content. I believe it is safe to assume that most users will simply be terrified of the potential liability, as they know that fighting back means risking a lawsuit, with all the emotional and financial costs it brings, even when the odds are in their favor. This is also why I do not believe that allowing anyone to “take the heat” in place of the user will solve the problem. In fact, it just adds another target for a lawsuit, as the user is not exempt from liability in this situation.

To be fair, the bill does mention that bad faith requests will be punished, albeit it fails to define how. Practicing attorneys like myself, however, know that proving bad faith in court is not an easy task. Besides, since anyone can send a complaint – not just the victim of the alleged wrongdoing – it is easy to imagine how different people could be used to send complaint after complaint to chill legitimate speech.

It is also worth noting that this system is not final. Even if the content remains online after the notice/counternotice process, the allleged victim can still go to court requesting an injunction for the content to be taken down.

In conclusion, if this bill becomes law, it is very possible that the number of lawsuits related to online content may drop. Ironically, though, the chilling effect on online speech might become far greater than ever before.

Removing true harmful content from the Internet is a legitimate goal, but determining what is legal or illegal is a task best left for the courts, not to the whim of users or ISPs. Despite the differences between the Brazilian and American legal systems, I believe the CDA 230 protections and DMCA histories of abuse can demonstrate the risks and potential pitfalls of a notice and takedown system, specially one that can be (ab)used for any kind of content.

Wth that in mind, I invite all readers to provide some feedback on the draft of this bill. An English version is available here.

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