Post by account_disabled on Mar 13, 2024 8:43:35 GMT
Spacca17. The mechanism established through article 19 of the Marco Civil da Internet defines that the responsibility of providers is restricted to cases of omission following a court order. As specialized doctrine points out, the Marco Civil established the judicial notice and take down . Only the exception provided for in article 21 fully adopts the original notice and take down system .
18. It is important to mention that the Marco Civil da Internet does not prevent application providers from acting spontaneously in removing content generated by third parties, in cases where they verify, in accordance with the parameters established in their use policies, that the content generated violated the rules established between providers and users for using the service.
19. In this context, it is crucial to understand that there is a difference between the obligation to remove content under a court order and the ability to remove content when there is no court order. In addition to the hypotheses set out in article 21, if the user reports content that they believe violates the rules for using the service, the provider may remove the content. However, if a violation of any warranty is found by the Judiciary, which orders the removal, the provider is obliged to remove the content and incurs liability if it fails to do so.
20. Extrajudicial notification, sent by the B2B Lead user, is not sufficient to oblige internet application providers to delete the content generated and, even less, to attribute to them the duty to compensate. It is impossible, under the law, to suggest that application providers, upon receipt of an online complaint, should remove content deemed illegal by the notifier, under penalty of civil liability for any damages caused.
21. We are not considering the (illegality) of content generated by third parties here, given that such valuation is subjective in nature and is ultimately up to the Judiciary.
22. It is undeniable that the Marco Civil da Internet Law chose to privilege freedom of expression and information, and this guarantee must be in accordance with the right to protection of individual privacy, established in the Federal Constitution. For this reason, the legislator provided for the need for a prior court order to hold application providers accountable. The Judiciary is exclusively responsible for assessing the illegality of content generated by third parties and the fair balancing of constitutional guarantees in apparent conflict. Only the Judiciary, in view of the principle of reservation of jurisdiction, has the legitimacy to decide whether certain content posted by a third party infringes the legal system or not, or whether a certain right should be ceded to another.
23. I understand, therefore, that the model adopted by the Marco Civil da Internet ( judicial notice and take down ) is appropriate to the Brazilian legal-constitutional order for the reasons I will now explain.
24. The Constitution of the Republic enshrined the freedoms of expression of thought, expression and information. Such freedoms reflect not only individual rights relating to the dissemination of information and ideas of any nature, but also a right of collective dimension, as it ensures that the entire community can have access to any information, with censorship being expressly prohibited (Constitution, article 220) . In that regard.