On May 17th, 2023, The Brazilian Supreme Court will resume two trials that deal with the constitutionality of – and the interpretation given to – relevant provisions of Law #12,965/2014 (known as “Marco Civil da Internet”, or “MCI”).

Unconstitutionality lawsuits #5,527 and #403, under the rapporteurship of Justice Rosa Weber and Justice Edson Fachin, respectively, discuss the constitutionality of article 12, III, and IV, of the MCI and the interpretation given to such provisions, which were used as a legal basis for the suspension of messaging applications that failed to comply with court orders to provide records and private communications of users.

Topic #987, under the rapporteurship of Justice Dias Toffoli, discusses the constitutionality of article 19 of the MCI, which establishes Internet Service Providers’ civil liability regime for damages arising from content generated by third parties. According to the current wording of article 19, as a general rule, ISPs can only be held liable for content generated by third parties if they fail to comply with a court order determining the unavailability of the content identified as infringing.

The trials were scheduled in the context of the ongoing discussions in the House of Representatives about Bill #2,630/2020, popularly called the Fake News Bill, which establishes rules regarding the transparency of social networks, search engines and private messaging services, especially with regard to the responsibility of these ISPs in combating disinformation and dissemination of illicit content. The positioning of the Supreme Court in the trials can directly impact the discussions on the Bill.

Our team will closely monitor the trials, as well as other issues related to internet regulation in Brazil. For more information on this subject, e-mail us at privacy@lickslegal.com.

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