An analysis of the balance between the duty of care of service providers and the accountability of digital platforms in light of the legislation
*By Marcelo Almeida.
Civil liability is one of the fundamental pillars of the Brazilian legal system, reflecting the need to compensate for damages caused to third parties. In Brazil, the duty of care, provided for in article 43 of the Civil Code, is a central element in the discussion on the liability of service providers. This article regulates the possibility of compensating for damages caused to those who did not act with the necessary diligence, establishing a standard of expected behavior in various relationships, including digital ones.
At the beginning of the year, Meta announced that it would no longer maintain content moderation mechanisms on its platforms in the US. It is important to note that such mechanisms were essential to prevent false information about, for example, the prevention and remediation of COVID-19, which shook the world.
In Brazil, the moderation model persists, but the initiative indicates that its days may be numbered. The 2022 IBGE census revealed that 163 million Brazilians aged 15 or over, of whom 151.5 million are literate, have a literacy rate of 93%. However, 11.4 million still do not know how to read and write a simple note, resulting in an illiteracy rate of 7%. This data is crucial to understanding the complexity of assigning responsibility to users of digital platforms. The lack of full understanding of the information posted can lead to misinterpretations and inappropriate actions, complicating the accountability of individuals for their posts.
Article 19 of the Brazilian Internet Civil Rights Framework, currently under debate in the Brazilian Supreme Court, establishes that internet application providers are not liable for content generated by third parties, except when, after a court order, they fail to remove content deemed to be illegal. However, this provision does not preclude the application of Article 43 of the Brazilian Civil Code, which deals with the duty of care. Both standards can coexist, since the Brazilian Civil Rights Framework regulates the provision of services on the internet, while the Brazilian Civil Code establishes the standard of due diligence expected for civil relations. The intersection of these laws is vital to ensuring a safe and responsible digital environment that protects both users and service providers.
A fundamental aspect of the digital platforms’ duty of care is transparency in information governance. This means that platforms must provide accessible mechanisms to prevent harm to third parties. Implementing tools that allow reporting of inappropriate content, promoting digital security practices, and providing clear information on how users’ data is handled are essential for platforms to act responsibly in Brazil. Accessibility to these mechanisms strengthens users’ trust and contributes to a safer and more ethical digital environment.
It is essential that digital platforms take an active role in promoting a safe and informative environment. The efficiency of these platforms presupposes that all those involved — users and providers — assume responsibility. Providers must implement mechanisms that promote digital literacy in order to facilitate the understanding and responsible use of the available tools. On the other hand, users must be aware of their responsibilities when sharing information, considering the legal and social implications of their actions.
The proper distribution of responsibilities is therefore an important condition for Brazil to stand out as a reference in the circulation of reliable information on the Internet. A healthy digital environment depends on the conscious action of all agents involved. Digital education must be a priority, enabling users to understand the implications of their posts and to use the platforms responsibly.
Furthermore, the discussion on the limits of civil liability must include a critical analysis of the protection of personal data. The General Data Protection Law (LGPD) reinforces the need for platforms to adopt practices that ensure not only data security, but also transparency regarding the use of user information. This aspect is essential to cultivate trust in digital platforms and promote an environment where civil liability can be effectively applied.
In conclusion, the limits of Brazilian civil liability on digital platforms require a deep reflection on the duty of care and shared responsibilities. The coexistence of article 43 of the Civil Code with article 19 of the Internet Civil Rights Framework is essential for a safe and conscious digital environment.
Digital literacy, transparency in information governance, and accountability are essential to ensure the ethical and responsible circulation of information on the internet. Collaboration between users and providers is crucial to building a digital space that respects everyone’s rights and promotes the integrity of shared information.
*Marcelo Almeida is a lawyer, master in law and Director of Government Relations at the Brazilian Association of Software Companies – ABES.
Article originally published on the IT Forum website https://itforum.com.br/colunas/limites-responsabilidade-civil-brasil/
References:
“Art. 43. Legal entities under domestic public law are civilly liable for acts of their agents that in that capacity cause damage to third parties, except for the right of recourse against those who caused the damage, if there is fault or intent on their part.” Available at: https://www.planalto.gov.br/ccivil_03/leis/2002/l10406compilada.htm
“Art. 19. In order to ensure freedom of expression and prevent censorship, the internet application provider may only be held civilly liable for damages resulting from content generated by third parties if, after a specific court order, it fails to take steps to, within the scope and technical limits of its service and within the specified period, make unavailable the content identified as infringing, except for legal provisions to the contrary.” Available at https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2014/lei/l12965.htm
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