Policy by Judicialisation: The Institutional Framework for Intermediary Liability in Brazil

Abstract

This paper offers an institutional assessment of the intermediary liability system currently operative in Brazil. According to article 19 of the Marco Civil, content sharing platforms shall only be held liable for third party infringement if they fail to act upon it under a court ruling. This is a court-centred system, and as such, it is praised for its benefits to freedom of expression, the assumption being that such a safe harbour should create fewer incentives for intermediaries to overblock content. The goal of this paper is to analyse this regulatory choice beyond the freedom of expression trade-off, considering the institutional characteristics of the judicial decision-making process and how they can affect the broader online content regulation context. It builds on the literature dedicated to the relationship between judicialisation and public policies in order to accrue the practical implications of the judiciary’s legitimacy, institutional capacities and selectivity for the aforementioned governance system.