Internet search engines are not obliged to follow advertisement policies to children

A judge from the Federal Court of Belo Horizonte (State of Minas Gerais) denied a Civil Class Action filed by the Public Prosecutor Office against Google Brasil and the Union – as representative of the National Counsel for Children Rights (CONANDA) –, claiming the hardening of YouTube policies as regards advertising to children.

More specifically, the Public Prosecutor Office firstly claimed that YouTube should disclose a warning informing that merchandising and marketing videos addressed to or featured by children is forbidden/abusive under the Brazilian law.

In addition, the Public Prosecutor Office claimed that YouTube added in its denunciation tools of inappropriate content an item of merchandising and marketing videos addressed to or featured by children.

In relation to the Union, the Public Prosecutor Office claimed that CONANDA should amend the Resolution 163/2014 – which recognizes as abusive the advertising and marketing communication addressed to children, with the intention of persuading them to the consumption of any product or service – in order to include administrative sanctions in case of violation of its devices.

The Civil Class Action was originated from a denunciation of Alana Institute, a non-profit entity for defense of childhood, which verified several companies using YouTube kids channels to make merchandising of their products and taking advantage from the hyper vulnerability of children by using them as sales promoters. This violates the Brazilian law system that forbids advertising to children.

The Court decision recognized that such practices are indeed abusive under CONANDA Resolution. However, Google Brasil is subject to the legal framework of established by the Law 12,965/2014, known as the Internet Bill of Rights or Marco Civil da Internet, which provides in its Article 19 that in order to ensure freedom of expression and prevent censorship, the provider of internet applications can only be subject to civil liability for damages resulting from content generated by third parties if, after an specific court order, it does not take any steps to, within the framework of their service and within the time stated in the order, make unavailable the content that was identified as being unlawful, unless otherwise provided by law.

In view of this, the judge affirmed that, regardless of how noble is the Google’s policy for inappropriate content, the tool is not mandatory, and it is not for the Judiciary to impose an obligation to Google about its operation. Thus, is was established that Google does not have a legal duty to add warnings and/or tools for avoiding advertising to children, in addition to those already privately established by the company.

Besides, precedents of the Brazilian Superior Court of Justice has already set forth that, under the Internet Bill of Rights, the internet intermediary, such as Google, is not obligated to previously control inappropriate content posted by its users, unless upon court order.

As regards the claim against the Union, the judge fixed that CONANDA does not have authority to enforce sanctions for non-compliance with its norms, but such enforcement is only possible by law.

*This article was written with the valuable contribution of Vitor Koketu da Cunha, legal trainee of Azevedo Sette Advogados.

Azevedo Sette Advogados