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Provisional Measure amends the Civil Internet Law and the Copyright Law to provide for the use of social networks

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On 09.06.2021, Provisional Measure nº 1.068/2021 (MP – Medida Provisória) was published, edited by the President of the Republic of Brazil, which amends the Civil Rights Framework for the Internet (Law nº 12.965/14 – Marco Civil da Internet) and the Copyright Law (Law nº 9.610/1998 – Lei de Direitos Autorais) to regulate the use of social networks.

Regarding the Civil Rights Framework for the Internet (Marco Civil da Internet), the MP:

  • includes in its subject matter the definitions of “social networks” and “moderation in social networks”, but it does not classify as social networks internet applications that are intended for the exchange of instant messages and voice calls (e.g. o WhatsApp), as well as those whose main purpose is to enable the trade of goods or services viable;
  • regulates the rights and guarantees of social networks users, ensuring, in summary:
    1. access to information about any policies, procedures, measures and instruments used for the purpose of possible moderation or limitation of the scope of dissemination of user-generated content;
    2. contradictory, ample defense and appeal in the hypothesis of content moderation;
    3. restitution of the content made available by the user, in particular personal data, texts, images, among others, when requested;
    4. restoration of the account, profile or content in the same state as it was, in the event of undue moderation by the social network provider;
    5. not excluding, suspending or blocking the dissemination of user-generated content, except for just cause;
  • prohibits social network providers from adopting criteria of moderation or limiting the scope of dissemination of content that imply political, ideological, scientific, artistic or religious censorship, except for just cause, as well as establishing the need to demonstrate motivation in case of moderation (of the user’s account/profile or content) under the terms disciplined in the MP and sanctions in cases of infringement by social media providers;

It should be clarified that the hypotheses of said “just cause” for moderation (exclusion, cancellation, total or partial suspension) of the account or user profile must be motivated and are exhaustive, i.e., it refers only to situations of:

  1. user default;
  2. accounts created for the purpose of assuming or impersonating the identity of third parties to mislead the public;
  3. accounts mainly managed by computer program or technology to simulate or replace human activities;
  4. repeated practice of conducts framed as contents that give rise to moderation for just cause;
  5. accounts that offer products or services that violate patent, trademark, copyright, or other intellectual property rights; and saw. compliance with a court order.

The hypotheses of “just cause” that allow the moderation (exclusion, suspension or blocking of dissemination) of user-generated content also require motivation and are exhaustive, limited to the following situations:

  1. when the content published by the user is in disagreement with the Child and Adolescent Statute;
  2. when the dissemination or reproduction configures the act, practice, promotion, support, incitement or teaching situations of:
    • nudity or explicit or implicit representations of sexual acts;
    • crimes against life, paedophilia, terrorism, trafficking or any other criminal offenses subject to unconditional public prosecution;
    • aiding criminal or terrorist organizations;
    • threat or violence, including for reasons of discrimination or prejudice based on race, color, sex, ethnicity, religion or sexual orientation;
    • apology for the manufacture or consumption, explicit or implicit, of illicit drugs;
    • violence against animals;
    • use of computers or technologies for the purpose of stealing credentials, breaking into systems, compromising personal data or causing harm to third parties;
    • against public security, national defense or state security;
    • infringement of patent, trademark, copyright or other intellectual property rights;
    • infringement of the rules published by the National Advertising Self-Regulation Council regarding content or advertising or propagandistic material;
    • spread of software viruses or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource; and
    • sale of products inappropriate for consumption, under the terms of the law.
  3. request of the offended party, their legal representative or their heirs, in the event of violation of intimacy, privacy, image, honor, protection of their personal data or intellectual property;
  4. compliance with a court order.

Regarding the amendments to the MP in the Copyright Law, the measure imposes the same restrictions for the moderation of content by social network providers and allows the holder of content protected by copyright, who had their content unavailable without falling under the hypotheses of “just cause” provided, request the application of penalties, the restoration of the content and indemnification.

Finally, it establishes a period of 30 days for social network providers to adapt their policies and terms of use to the changes brought by the MP.

The “just cause” hypotheses, that is, which allow the moderation of social network providers in a quick manner, are limited and insufficient to face various problems in social networks, such as combating misinformation/fake news.

Also, in relation to intellectual property rights that may be violated, despite being considered “just cause”, their complaints through specific programs on social networks will tend to no longer lead to moderation by the networks, due to the possibility of suffering sanctions for any mistaken judgment, that is, the platforms will probably wait for court decisions to adopt measures to exclude, suspend, block or cancel an account or content.

Due to the impact and relevance of the points discussed, as well as the lack of debate on these topics, the MP has a negative impact on the improvement of regulations on the obligations and responsibilities of internet providers, as well as on the rights of users, making it difficult to deal with several problems in social networks that were not included in the hypotheses that allow the moderation of these providers.

So far, the Supreme Court has received five direct actions of unconstitutionality (ADIs 6991, 6992, 6993, 6994 and 6995) against the MP, sustaining, among other points, the existence of formal unconstitutionality due to the absence of a demonstration of urgency and relevance, as well as for not sticking to the material limits applicable to the issuing of provisional measures, considering that by regulating the exercise of freedom of expression in the context of the internet, it affects a fundamental individual right, considering it an inseparable and indispensable element of citizenship.

Although the Provisional Measure (MP) has immediate legal effects, it needs to be approved, within 60 days, renewable for an equal period, in the Chamber and in the Senate to effectively become an ordinary law. If not, the MP will expire and the changes it promotes will no longer exist.

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