Sure! Here’s the translation to American English:
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The Supreme Court of Brazil is in the midst of a crucial analysis regarding the liability of internet intermediaries, specifically concerning Article 19 of the “Marco Civil da Internet.” This debate began last November and is being led by Justice Dias Toffoli. The main focus is to determine the constitutionality of certain rules affecting digital platforms in relation to user-generated content.
So far, most justices seem to agree that the current regime is at least partially unconstitutional, although there are differing views in their approaches. One of the more debated issues revolves around the possibility of the mechanism called “notice-and-takedown” being established as a general rule for the responsibility of platforms regarding third-party content. However, the scope of this rule and what type of content would be regulated under it still needs to be defined.
Some judges argue that it is essential for there to be a prior court order to hold intermediaries responsible for certain posts, especially those that may affect a person’s honor. This approach proposes a differentiated analysis of liability, depending on the actions of the platforms, including their decisions on what content to promote.
On the other hand, the responsibility of platforms has also been discussed not just concerning advertising content, but also regarding posts made by inauthentic accounts. This issue adds complexity to the current legal framework, and the possibility that platforms may need to implement proactive monitoring systems to detect harmful or criminal content is on the table.
As the trial progresses, three justices have yet to cast their votes, creating uncertainty about the final outcome. The expectation is that the decision will not only resolve the individual cases that have reached the court, but also establish a sort of “general thesis” that guides future decisions.
Justice Alexandre de Moraes’s reasoning has raised concerns as he attempts to equate the responsibility of digital platforms with that of traditional media, overlooking the essential differences that exist between the two.
Experts warn about the dangers of broadly addressing monitoring obligations and implementing “notice-and-takedown” legislation. These measures could lead to increased censorship and a deterioration of user privacy, especially regarding encrypted messaging applications.
The decisions made by the court in this context could have profound repercussions not only on how content is managed on the internet in Brazil but also on how platforms operate internationally, highlighting the urgent need to find a proper balance between regulation and the protection of digital rights.
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Referrer: MiMub in Spanish
