The issue of tort arises when information on the Internet causes damage. Although the responsible party will be obliged to redress the harm, the extent of liability is sometimes difficult to determine. Thus, it is important to identify the circumstances in which each party responsible for an internet operation may be held liable for the information transmitted.
Two of the fundamental activities of the Internet are the production and hosting of information, and an act that causes damage may well occur at one of these stages. Consequently, the party responsible at that stage may be liable (although liability may increase or decrease in proportion to the technical level and expertise required).
The production of information can be performed by any user of the Internet that proliferates it, or by entities that are willing to produce it (eg portals and e-commerce sites). In fact, it can be carried out in may ways. For example, on a discussion board, any user can contribute and potentially cause damage to another. Whether the entity that provides the discussion board is liable is likely to be addressed on a case-by-case basis.
Entities that host information must adhere to the instructions of their contractors. If they fail to do so, the party that guarantees the hosting will be liable for the damages caused. In addition, they must provide adequate security. The obtainment by hackers of credit card numbers hosted by a service provider is just one example of how inadequate security can give rise to tort liability.
Additional issues include whether the content of information should be monitored with the intention of identifying and blocking illegal material, and the extent to which ISPs are liable. Generally, ISPs are not considered to be responsible for information sent through the Internet, since they merely provide the technical medium of transmission. However, ISPs may be liable if they do not comply with the provisions of their internet access contract (eg, if they do not offer reliable connections or appropriate technical support).
The distribution of inaccurate information is another controversial issue and a provider's potential liability depends on the measures in place to prevent this and the identity of the parties to which it has an obligation.
Although there is no legislation on the subject in Brazil, Bill of Law 4906/2001 of the House of Representatives addresses the liability issue by adopting a system of analogies. Where the provider merely facilitates the information exchange, the most correct analogy is with distributors. Where the provider exercises editorial control, the analogy is with editors and newspapers, and where the provider generates and/or produces the information that it transmits, the analogy is with professionals and consultants.
Articles 35 to 38 of the bill define several principles for establishing when and how ISPs are liable for tort. The bill determines that a provider supplying connection or information transmission services is not obliged to oversee (and, therefore, is not responsible for) information content. Furthermore, a provider that supplies a file hosting service plus systems for the electronic offering of goods, services or information, is not responsible for the content displayed unless its failure or negligence is duly proved.
The bill imposes civil and criminal responsibility on file hosting service providers that are clearly aware that an offer of goods, services or information constitutes a crime or misdemeanour, but fail to suspend or interrupt access immediately.
In summary, the parties that produce information which is disseminated online are generally liable for any damage caused to third parties. This liability may extend to parties that host information insofar as they contribute to the production of the relevant data or are obliged to supervise its content.
For further information on this topic please contact Ricardo Barretto, José Leça or Maria Fernanda Butiriça at Barretto Ferreira, Kujawski, Brancher e Gonçalves – Sociedade de Advogados by telephone (+55 11 3066 5999) or by fax (+55 11 3167 4735) or by email ([email protected], [email protected] or [email protected]).