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Brazil’s high court should uphold country’s intermediary liability shield

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  1. Content Restrictions

The Reporters Committee for Freedom of the Press is urging the Brazilian Supreme Court to uphold a law that is similar to a U.S. statute that protects internet companies against liability for third-party content posted on their platforms.

In a letter sent to the justices of Brazil’s high court on March 28, 2023, the Reporters Committee highlights the important role Article 19 of Marco Civil plays in providing for the free flow of information online. Enacted in 2014, the Brazilian law offers protections similar to those found in Section 230 of the Communications Decency Act here in the United States. Article 19 prevents liability for third-party content unless a company fails to comply with a court order to remove that content.

“By limiting the fears of online intermediaries over unfounded litigation for content created by third parties,” the Reporters Committee’s letter states, “Article 19 protects the free exchange of ideas and information on the platforms that journalists rely on to identify sources, investigate stories, provide coverage of events of public concern, and engage personally with their audiences.”

There are currently two cases before the Brazilian Supreme Court. The first one involves a schoolteacher who wanted a page about her on a Google social media site removed. The question there concerns the circumstances under which courts can order companies to take down “offensive” content.

The second case involves a request to take down a fake profile on Facebook. That case concerns whether companies have a duty to take down certain types of content even absent a judicial order, which would require the court to declare the liability shield law unconstitutional. The lower court did exactly that, holding that Article 19 violated the constitutional provision that requires the state to protect consumers.

In its letter, the Reporters Committee urges the Brazilian Supreme Court to reverse the lower court’s ruling.

“Upholding the lower courts’ decision finding Article 19 unconstitutional would undermine the democratic process and lead to the undue suppression of free expression,” the letter states.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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