Civil Liability Of Internet Service Providers: The Emerging Of A More Liberal Legal Framework

Author:Mr Fabio Celli and Cláudio Mattos

The purpose of this article is twofold. First, to summarize the current legal treatment of "Civil Liability of Internet Service Providers." Second, to discuss briefly the impact of the pending change that will result if the proposed Bill No. 2,126/2011 becomes law when the National Congress votes on the matter later this month.

For the purpose of this article, despite the many categories of internet service providers, it is only important to distinguish between two of them: (a) the "connection providers", who enable users to be connected to the global network; (b) the creators of the facilities that enable users to generate their own content, who will be specifically referred to in this article as the "contents providers". An example of connection providers are the telecommunications operators, whereas Facebook is a well-known example of a content provider.

When we say that a certain category of internet service provider is "civilly liable", we mean that should a service provider or any of its customers cause damage to a third party, it will be obliged to pay any settlement that the Court awards to the injured party--not only for material but also for moral damages.

Current status

Under the current legislation, as a general rule the connection providers can be civilly liable just for the defects of its own services, but not for damages to third parties solely caused by users of its services. This is because in thesis the connection provider gives its customers the means for them to have access to the internet but it does not make available any specific content to such users/customers. However, should its conduct contribute to the damage (for instance, allowing third parties to access data transmitted by users of your network/resources without knowledge by those users), it will be held liable under the law.

Another example of this eventual liability may be found where connection providers are silent about third parties actions through its network/resources. One case under current discussion is regarding spam. The lawmaker established as the consumer's basic right the protection against deceptive and abusive advertising, as well as against coercive or unfair business practices. There are bills being discussed in the Brazilian Congress, seeking to limit the sending of spams, some of them with impositions on providers to block spams, some of them imposing sanctions to those selling databases, etc.

On the other hand, pursuant to the majority of...

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