A Brazilian Civil Rights Framework for the Internet: The Right to Freedom of Expression Versus Copyright Protection

Abstract

This paper defends the adoption, by Brazilian legislation, of safe harbors that exempt online service providers from any civil liability arising from the violation of copyrighted material uploaded by third parties. Such exemption is justified because in the lack thereof, websites would be transformed into censors of what might or not be shared online, undermining the great expansion of freedom of expression rights that were made possible by the Internet. This paper is divided in six different sections. The first introduces the aforementioned theme; the second describes the concept of safe harbor regulations present in the legislation and legal doctrines of different jurisdictions around the world, including the safe harbors now being discussed in Brazil; the third presents case law from the United States, France, Italy, and Germany to discuss how these safe harbors are being interpreted around the world; the fourth presents the way Brazilian tribunals have been deciding matters regarding third party content on the web; the fifth uses the proportionality test applicable in jurisdictions such as Germany and Brazil to justify the establishment of safe harbors; and the sixth briefly concludes what was previously discussed.