Strict and fault-based civil liability of the internet provider under the Marco Civil da Internet and the Consumer Protection Code in the case law of the Brazilian Superior Court of Justice

Abstract

The Superior Court of Justice has consolidated its understanding of the strict and fault-based civil liability of internet providers under the Marco Civil da Internet. The text discusses that understanding on the basis of Law No. 12.965/2014 and of the Consumer Protection Code, starting from the statutory definition of the internet and from the types of provider — backbone, access, electronic mail, hosting and content — and going through the Court's case law on offensive content posted by third parties and on moral damages. It examines the rule of article 19 of Law No. 12.965/2014, which makes liability conditional upon failure to comply with a specific court order, the requirement that the claimant indicate the virtual address (URL), and the absence of any duty to exercise prior control over the content posted by users. It holds that providers are, as a rule, liable only on a fault basis, and become strictly liable only where they fail to comply with a court decision ordering the removal of offensive content, answering then for their own inertia and not for content they did not create.