Defamation / Reputation
Afanasyev v. Zlotnikov
In Progress Expands Expression
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Judge Garcia-Martinez of the Civil Court of the State of São Paulo dismissed a claim by Senator Aecio Neves (the “plaintiff”) requesting the removal of online articles reporting an investigation into the misuse of public funds while he was Governor of the State of Minas Gerais. At the time of the publication of the impugned articles, the plaintiff was also a Senator who was appointed as the opposite candidate for the Brazilian Presidency. The plaintiff alleged that the search results harmed his honor and good reputation. The report turned out to be false. The Court held that an internet service provider (“ISP”) cannot be held liable for content uploaded by third parties, even if it is illegal, because an ISP has no obligation to control the content uploaded by its users. The Judge said that if an ISP were to be held liable freedom of information could be jeopardized.
On December 16, 2013, the plaintiff filed a lawsuit against Google, Microsoft and Yahoo! requesting the removal of internet search results of news articles detailing investigations into the misuse of public funds that occurred when he was Governor of the State of Minas Gerais. The plaintiff alleged that the search results harmed his honor and good reputation. At the time of the publication of the impugned articles, the plaintiff was a Senator who was appointed as the opposite candidate for the Brazilian Presidency.
The plaintiff alleged he was falsely accused of misusing public funds contrary to the public interest and claimed to be a victim of a “virtual gang” formed to spread defamation against certain politicians on the web. He claimed that the defendants were liable and had an obligation to comply with the removal of false content.
The defendants filed their responses based mainly on the argument that they were not liable for the content produced and uploaded by third parties and if they were held liable it would jeopardize freedom of information and expression.
On April 8, 2015, J. Martinez delivered his opinion to the Court dismissing the plaintiff’s claim.
J. Martinez started his opinion by stating that freedom of information encompasses the rights to inform, to be informed, and to choose whether to be informed. The ISPs are content providers; they do not organize or manage the website addresses shown after a search; and their role is limited to guiding the user to where a subject of interest can be found. Therefore an ISP could be considered as a librarian who locates where the required books are located and shares them with the requestor, however, this does not make the provider liable for the books’ contents.
J. Martinez said that ISPs basically exist as virtual scenarios, creating public and unlimited access to legal or illegal content that is published on the web. In these circumstances, the defendants cannot be liable for the false news defaming the plaintiff, he said.
The Judge went on to say that assuming that ISPs can control the content uploaded on the web is assuming that freedom of information can be subverted, and, therefore, an ISP cannot be compelled to erase or eliminate information from its results. He said that internet searches cannot exclude a word or an expression, photos or specific terms, even if the information is illegal. Inhibiting access to public information by censoring search tools means restricting the freedom of expression and information of the globalized world, which is a clear violation of Article 220, 1st Paragraph of Constitution.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Court expanded FoI by affirming that ISPs are not liable for false or illegal contents that appear in search results.
It is true, nevertheless, that Article 19 of Federal Act 12.965/2014 rules that internet providers could be liable if, once judicially ordered to withdraw certain result, refuse to comply with the order.
Moreover, one outcome of the decision could be deemed contrary to the RTBF (even illegal contents cannot be controled by ISP).
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
In further lawsuits in which ISP liability for illegal content shown in searches will be discussed the decision could be followed even though does not consist a binding precedent.
Let us know if you notice errors or if the case analysis needs revision.