Digital content and IP issues

Required notices

Are websites and any other digital content required to display certain legal notices or other information in your jurisdiction?

Websites are not required to display any legal notice unless the content available, or product or service being sold or advertised through the website, requires itself a legal notice or disclaimer under the law. For instance, websites containing financial and medical content may require legal notices.

In addition, websites or other electronic means offering services or products to consumers must display complete information about the services or products (including essential characteristics, health and safety risks, prices, fees, expenses, delivery conditions, and other relevant information) and the supplier (including the company’s name, tax enrolment number, physical and electronic address, and location and contact information).

Liability for content

What rules govern liability for online or other digital content that is defamatory or infringes another party’s IP rights?

Digital businesses are liable for digital content that is defamatory or that infringes third-party IP rights when they themselves publish the content or when they exert editorial control over user-generated content (ie, when they review and approve the content to be published). In these cases, digital businesses are liable if all requirements for at-fault liability are present.

Application service providers (ASPs, understood as companies that offer internet-based applications) may also be liable for user-generated content deemed as defamatory or otherwise illegal if they fail to comply with a court order determining the takedown of such content.

There are however two special cases regarding liability for user-generated content in which the notice and takedown regime applies and ASPs may be liable for user-generated content if they fail to take it down, as follows:

  • User-generated content portraying sexual acts or nudity, due to express legal obligation; and
  • User-generated content infringing copyright, based on legal precedents.

How can liability be excluded or limited?

The only way to exclude liability for user-generated content that is defamatory or that violates a third party’s IP rights is to comply with a takedown order or, when applicable, with an extrajudicial notice.

In general, contractual clauses for exclusion or limitation of liability are accepted in contracts only when they pertain to disposable rights and when it is set by means of bilateral consent. Brazilian law deems such clauses null and void when imposed unilaterally or in the context of a business-to-consumer (individual) relationship.

Which parties can be held liable for defamatory or infringing content? Can contingent liability be extended to internet service providers (ISPs)?

In case of user-generated content, the user who published the content is directly liable, but ASPs might become liable if they fail to comply with an occasional takedown order or, when applicable, with an extrajudicial notice.

If the content was published by the digital business, the digital business would be the party held liable.

In addition, Brazilian law expressly excludes liability of ISPs for user-generated content.

Content takedowns

What rules and procedures govern content takedowns? Can ISPs remove defamatory or infringing content without permission?

As a rule, any natural person is entitled to request ASPs to take down content portraying sexual acts or nudity involving him or her. Such request can be made via an extrajudicial notice that identifies the content and provides a mean to locate it unequivocally, usually by providing its URL. The same proceeding applies to content infringing copyright as determined by case law.

For other types of content, a court order declaring the content unlawful and determining its removal is necessary so as to preserve freedom of speech and avoid censorship.

ASPs can – although they are not legally obliged to – remove defamatory or infringing content regardless of a court order, based on contractual stipulation. If ASPs reserve such right in their terms of service and deem that the content violates their terms of service, they are entitled to take down such content.

Domain names

What rules, restrictions and procedures govern the licensing of domain names?

The allocation of internet addresses and the registration of ‘.br’ domain names are performed by an executive arm of the Brazilian Steering Committee (CGI.br) named the Brazilian Network Information Centre or NIC.br. Domains are registered in a first-come, first-served basis, without review of potential conflicts with any third party’s rights.

Brazilian domains (‘.br’) can be registered by Brazilian individuals or legal entities established in Brazil or by foreign companies represented by a local attorney in fact, provided that the foreign company signs a commitment letter assuring it will definitively establish activities in Brazil and register with the Brazilian National Register of Legal Entities within 12 months, and further provided that it informs a local billing address.

How are domain name disputes resolved in your jurisdiction?

CGI.br has implemented an administrative proceeding (to precede judicial litigation) in order to resolve disputes involving domain names registered in bad faith (applicable only to complaints against domains for which registration was requested after 1 October 2010).

Under these rules, a domain will be challengeable when it was registered or is used in bad faith (eg, with the intention to be sold to a trademark owner or to harm a competitor) and:

  • is identical or similar enough to cause confusion with a trademark that had been filed for registration in Brazil before the domain name was registered or with a trademark already registered in Brazil;
  • is identical or similar enough to cause confusion with a well-known trademark in the same industry, even if that trademark is not registered in Brazil; or
  • is identical or similar enough to cause confusion with another domain name, or with a corporate name, family name, well-known pseudonym or artistic name, among others.

The administrative proceedings can lead to decisions maintaining, cancelling or transferring; they cannot impose penalties and may be challenged in court.

What special measures and safeguards should rights holders consider in protecting their online/digital content?

Remedies available to content holders upon unauthorised use of their copyrighted content include injunctions, right to indemnification and criminal remedies.

Restraining orders determining the temporary suspension of the infringement may be issued in specific situations, even before the violator is served process. Copyright owners may also obtain a court order for the seizure of unauthorised copies or the suspension of their publication and for the suspension of content transmission by any means, subject to daily fines. Equipment used for unlawful purposes may also be seized and destroyed. Copyright owners may also have their right to attribution publicised in wide circulation newspapers or on television, at the cost of the infringer.