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Thursday 15 September 2011

Patricia Covarrubia

Previous material control on the internet would breach confidentiality

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The Brazilian Third Chamber of the Superior Court of Justice (STJ) has held that Services Providers are not required to apply any earlier control on material posted on the Internet, however they need to keep track and remove offensive content. This decision denied a claim for compensation against Google Brazil Internet Ltda and its site Orkut (social networking site) .

Background of the case
An Orkut’s user claimed that he was offended by the content published on this site. The first Instance court determined the removal of the offensive material (a photo album and its content) and payment of R$ 8,300 for moral damages. Google appealed and the Court dismissed it believing that the site would have developed tools to restrain abuses and to identify the user responsible for the offenses.

The case reached the STJ: Google claimed that the Court sentence was extra petita (judge holding something other than what was the requested action), since at no time the claimant asked for information about the user responsible for the said offences. It also argued that not having participated in the creation of Orkut’s offensive material it could not be held liable and be required to indemnify the victim -- under articles 182 and 927 of the Civil Code, the perpetrator of the offense is the only one required to compensate.

The rapporteur of the process, minister Nancy Andrighi, held that Google's liability should be restricted to the nature of the activity developed by it. To this effect, the services offered by the company via Orkut include confidentiality, security and inviolability of customers’ data. Therefore, "regarding the supervision of the information posted by users, it is not an inherent activity of the service, so it cannot be considered to be defective, in accordance with Article 14 of the CDC". Interestingly, the minister argued that if previous control (in this case by Google) of material is required, then it would be a breach of confidentiality of communications prohibited by Article 5, section XII of the Federal Constitution. Moreover, she claimed that early verification of the content would eliminate one of the biggest attractions of the Internet, which is the transmission of data in real time.

However, the minister argued that there is still responsibility for traffic information saying that "there is however the duty, once aware of the existence of a message which is offensive, to withdraw it immediately from the air". To this effect she noted that the company took the offensive material from the air as soon it was informed of the situation. In addition, Google maintains a channel for people, or non users who have had their identities stolen on Orkut, to request the removal of the account and report other abuses. Concluding, the minister removed Google’s obligation to indemnify.

The case is Process No REsp 1186616

Patricia Covarrubia

Patricia Covarrubia