Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
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On Appeal Mixed Outcome
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Professional race car driver Rubens Barrichello sued Orkut for failing to remove fake social media profiles that depicted the athlete. The Brazilian Superior Court held that internet service providers have no objective liability resulting from third parties publishing unlawful content on the internet, that they cannot be required to exercise prior examination or control of content posted by users, and that they must remove any content known to be clearly unlawful within 24 hours of becoming aware of such, under the penalty of being held liable for damages.
In 2006, Rubens Barrichello, a Brazilian Formula 1 race car driver, brought suit against Orkut, a social media site that is owned by Google. The suit was brought after Orkut ignored requests from Mr. Barrichello to remove a series of fake social media profiles that depicted the race car driver.
Orkut was held liable for not removing the content that depicted Mr. Barrichello. The court held that a request to remove content was sufficient legal notification to Orkut.
Furthermore, the Corte Especial do Superior Tribunal de Justiça (STJ) held that an internet provider could not be held liable for third parties publishing unlawful conduct or expected to screen all the content of their users. However, an internet provider must remove clearly unlawful conduct within 24 hours upon becoming aware and can be held liable for damages for failing to do so.
The STJ rejected Mr. Barrichello’s claim that Google had the duty to set up blocks linked to Barrichello’s name. The Court argued that by doing so Google would be incurring censorship and obstruction of freedom of speech. The Court also denied Barrichello’s claim for penalties against Google in the event if other profiles or communities were created using Barrichello’s name or persona, thus understanding that this would be considered a form of preemptive censorship.
Barrichello was awarded R$200.000 (~ $100,000) monetary damages by the District Court, which despite the request of Mr. Barrichello, the Superior Court refused to increase.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
While the Court upheld an individual’s right to request the removal of unlawful content, such as false depictions, from social media sites, the Court also held that to legally force a social media site to regulate and preemptively approve content would have adverse effects on freedom of expression.
The Court attempted to balance the rights of the individual without restricting social media’s role as a form of expression. In granting compensation to Mr. Barrichello, the court also afforded social media some protections. Therefore, the outcome is mixed.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
This precedent states that, if a internet provider was informed on a unlawful content and asked to remove it, even in a non-judicial way, the internet provider shall be responsible to the damages caused by the content if it would not removed immediately.
Justice Nancy Andrighi, in this decision, set forth the internet provider shall remove the unlawful content within 24 hours after being informed.
Case significance refers to how influential the case is and how its significance changes over time.
Brazil is a civil law country. This decision holds persuasive value in the lower courts of Brazil but is not strictly binding.
Law # 12.965
Enacted April 23, 2014
Brazilian Civil Rights Framework for the Internet
During the trail, this statute was enacted to regulate the use of the Internet in Brazil.
Let us know if you notice errors or if the case analysis needs revision.