Responsabilidade civil dos provedores de internet diante da ameaça de lesão a direitos fundamentais

Abstract

In the context of technological innovations, problems that the Law needs to address often arise without specific laws to regulate them. Thus, it is necessary to assume a relevant role in these situations through jurisprudence and the interpretation and application of other codifications of a more general and principled character. That was the case of the civil liability of internet providers. The search for specific legislation to address this and other issues resulted in the Marco Civil da Internet and the controversial Article 19 of this law whose constitutionality is being challenged in the Brazilian Supreme Court. This provision makes the offended parties more vulnerable by bringing more obstacles to the liability of these large companies. However, they are the providers and make their profit precisely from the information made available by users. This great difficulty is expressed mainly by the need for non-compliance with judicial notification to incur liability and in the requirement to indicate all the links in which there is offensive content. All this happens for the sake of protecting freedom of expression. Nonetheless, it allows damages to increase in a medium that propagates content massively and instantaneously, due to the slowness of judicial means and too many requirements demanded from those who do not have the financial and technical capacity to solve the issue. This position of the law is reflected in judicial decisions, changing the paradigm and, consequently, bringing risks and threats of injury to other fundamental rights that, equally and by constitutional force, must also be protected. Given this panorama, some solution paths are presented in order to advance in a balance, guaranteeing the cohesion of the legal system, respect for constitutional principles, and the protection of threatened fundamental rights. To this end, these paths are supported by the weighting of principles, by the indispensable dialogue of sources, and by the principles and provisions of the General Law of Data Protection and protection of transindividual rights that result in a proactive responsibility and peculiar role of the providers.