The Insensitive Internet – Brazil and the Judicialization of Pain

Marcelo Thompson is a Research Assistant Professor in Law and Information Technology at the Faculty of Law of The University of Hong Kong and Acting Co-Director of its Law and Technology Centre.

Without the usual diatribes of the political process; without the bickering and finger-pointing, earmarks and pork barrel provisions, a new Bill is being introduced in Brazil. The lawmakers are not the usual suspects. They are the suspecters. The Civil [Rights] Framework for the Internet in Brazil is a project initiated by the Brazilian Ministry of Justice together with a famous Law School in Rio de Janeiro – but ultimately it is a project being undertaken by society at large.

During 45 days, until the upcoming 23 May, every citizen in Brazil has been having the possibility of contributing to define how the Civil Framework, as it is nicknamed, will be written; to give their two cents on how normative expectations regarding the Brazilian information environment will be stabilized. Which criteria will be adopted to choose amongst contributions, how truly democratic the process will be remains to be seen. The fact that the Ministry of Justice of Brazil is ahead of this project, however, already invites us to take its current content extremely seriously. Such content, originally worded under the auspices of an organ of such stature as the Ministry, provides us with a detailed picture of the Brazilian Government’s understanding about issues that are deeply related to the protection of fundamental rights and the development of the democratic process in Brazil.

Though there is much to laud the Civil Framework for, in spirit and scope, there are provisions in it that should definitely not prosper. One of these, which will be discussed at greater length, came as a result of two infelicitously partial reactions by the press – one from Globo Organizations; the other, from the Committee to Protect Journalists. Such a pressing contribution is, interestingly, the only one to which the organizers have acquiesced so far. The headline above is named after it. Besides such provision, the article will tackle two other major ones. There is a reason for the three of them having been singled out: their pervasive impact on the sort of political structure, on the sort of liberal principle to be embraced by Brazilian society. The choice is between a liberal model that genuinely enables each actor in the information environment to pursue his own conception of the good within the wider web of convictions of his community and another, only supposedly liberal model that, per principle, neutralizes the scope of reasons that a certain suspected actor – Governments, Internet Access Providers, Online Service Providers – may choose to act upon.

The provisions criticized in this article embrace the latter model. Altogether, they create a complex system of restraint for such actors. Conversely, they also work as a mechanism for the expansion of an unencumbered, anti-social, technologized conception of a self whose liberty, it is thought, should not face any effective form of autonomous resistance – even when more urgent values are at stake. Each of these provisions, in its own way, reflects an ideal of neutrality; each excludes the possibility of action by those actors even when there are sound reasons for action or, at the very least, severely reduces the incentives for actions for sound reasons being undertaken. Though the Bill does embrace other deeply valuable principles, the image that comes out of the provisions discussed in this article is that of an insensitive Internet: one that disregards not only that agents in the information environment, in choosing their reasons for action, do pursue certain conceptions of the good; it also disregards that they should be expected to do so – if only in face of the horror.

I. The Judicialization of Pain

If there is an iniquitous provision in the proposed Bill it is the one that renders Online Service Providers liable for third parties’ content only if such content is not taken down by the OSP after it receives a court order commanding it to do so (see Art. 20 of the new text, in a hasty translation). On the one hand, it is fair to say that such provision does not prevent an OSP from taking down content it understands to be infringing of the OSP’s Terms of Service or violating the law in general. On the other hand, however, it is imperative to notice that such provision does not oblige an OSP to remove content even of the most conspicuously illegal nature. The OSP ‘can’, but nothing says it ‘ought to’. Abhorrent violations of the most fundamental human rights are thus allowed to remain online until the person whose rights are being violated manages to find a lawyer (or to obtain assistance from a small claims tribunal), file a lawsuit and obtain a Court order determining that such violating content be taken down. There are a number of problems with that.

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