Defamation / Reputation, Hate Speech, Political Expression
NPD v. ZDF
Closed Mixed Outcome
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The Court of Appeals of the State of Rio de Janeiro, Brazil, upheld a lower court ruling holding Facebook Brazil liable for failure to remove false content about actress Giovanna Lancellotti Roxo and to exclude groups targeting the actress. It also increased the damages award to BRL 55,000.00, from BRL 10,000.
The Court reasoned that the relationship between Ms. Lancellotti and Facebook Brazil was analogous to that between customer and user and, on this basis, consumer protection law could be applied. Accordingly, Facebook Brazil’s service became defective as soon as Ms. Lancellotti’s intimacy, privacy, and image were harmed and Ms. Lancellotti was entitled to be compensated. The Court also affirmed that freedom of speech is not absolute and must be balanced against an individual’s right to dignity protected under the Brazilian Constitution.
In 2013, Ms. Lancellotti, an actress, filed a lawsuit against Facebook requesting it to delete 59 false profiles and 10 groups which hosted offensive and harmful content. The lawsuit was filed only after Mrs. Lancellotti was unsuccessful in her attempts to work with Facebook directly to remove the profiles and groups.
Facebook Brazil argued that the company could not be held liable because actual control of the site was maintained by Facebook Inc. in the U.S. and Facebook Ireland Limited, which is responsible for all Facebook’s operations outside the U.S.
On the merits, Facebook Brazil stated that its procedure allowed for Ms. Lancellotti to report such activity using its prescribed telematic process and Facebook would then examine the profile or group for inappropriate content. Moreover, Facebook Brazil declared that many communities just reflect users’ opinions and were therefore protected under freedom of speech principles. Facebook further argued that it would be unreasonably burdensome to expect the company to control or monitor every communication as a preventative measure. In these circumstances, Facebook Brazil argued that Ms. Lancellotti was not entitled to damages.
The First Instance Court found in favor of Ms. Lancellotti and ordered that she be paid BRL 10,000.00 in damages. Both Ms. Lancellotti and Facebook Brazil filed appeals, Ms. Lancellotti to increase the amount of damages and Facebook Brazil to overturn the decision.
On November 30, 2016, J. Fernando Foch, of the Court of Appeals of the State of Rio de Janeiro, granted Ms. Lancellotti’s appeal and denied Facebook Brazil’s appeal.
J. Foch started by stating that although there were many precedents holding that the relationship between the user and social network could not be assessed under consumer protection laws, this case was a typical example of the imbalance of power between a user of services, Ms. Lancellotti, and a provider of services, Facebook Brazil. Therefore, consumer law could be applied and, on this basis, Facebook Brazil’s service became defective as soon as Ms. Lancellotti’s intimacy, privacy, and image were harmed.
J. Foch continued that Ms. Lancellotti’s evidence was such that she had clearly been the victim of bullying which necessarily caused harm and that this was exacerbated by the distress and frustration caused by the anonymity that exists on the internet. Further, the Judge said, the damage was increased because of the the exponential spread of news and posts on the web.
J. Foch stated that Facebook’s failure to address the problem caused by the harmful and offensive fake Facebook profiles and communities, rendered Ms. Lancellotti powerless. As a result, Ms. Lancellotti suffered both personal distress and damage to her professional life which was compounded by Facebook’s failure to act after it was informed of the harm caused. The Judge said that, in these circumstances, Ms. Lancellotti deserved to be compensated.
He said that although Article 19 of Federal Law 12.695/14 states that a social network is only liable if it fails to remove a post, profile or group after being judicially notified, the Act was not in force at the time of the instant case and therefore did not apply. He commented that it was puerile to suggest, as Facebook Brazil had argued, that it only had to withdraw the offending material if users took advantage of its telematic process.
J. Foch also stated that freedom of speech is not absolute and must be balanced against an individual’s right to dignity protected under the Brazilian Constitution (Article 1st, III). Further, Article 20 of the Civil Code provides that anyone who suffers harm to his or her image or reputation may ask for the removal of the offensive material.
J. Foch ordered Facebook Brazil to pay BRL 55,000.00 in damages to compensate Ms. Lancellotti for her harm.
Following the ruling, a spokesman for Facebook Brazil said that the company was analyzing the decision before deciding whether to appeal, according to Brazilian news website Veja.com.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision prioritized Ms. Lancellotti’s right to dignity and reputation over freedom of speech on the basis that the speech in issue constituted hate speech. However, it is arguable that the impugned speech did not amount to hate speech which is generally considered to be more than just negative speech or cruel words which are protected as part of freedom of expression.
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