In a context of heated discussions by the courts and growing concerns about reputational damage and the so-called “Streisand Effect”, an emerging issue is taking stage on social networks in Brazil: the ‘cancel culture’. It reveals the need for influencers and content creators to keep their legal strategies up to date. It is time for them to deal with a such phenomenon that has transformed digital interactions and challenged the traditional notions of responsibility and freedom of expression.
A deeper understanding of this subject requires a multidisciplinary critical view that involves a range of factors: – the perception of the role and responsibilities of each character and the cultural and social consequences, – digital education, – promotion of self-reflection and constant ethics, – constant updating of regulation in the sector, – challenges of international jurisdiction (given the cross-border nature of the internet and social networks), – promotion of alternative methods for dispute resolution arising from the online environment, – responsible action by the media and journalists, and, – ongoing monitoring of the evolution of case law in the courts as they encounter new challenges.
The expansion of Internet access and the creation of social networks have changed not only interpersonal relationships, but also the way we express ourselves and influence each other. The Internet has become a kind of “clean slate” on which users can express their opinions, views and ideologies under the protection or veil of an online profile, and quite often with a desire for social validation. In addition to be operating as a vast vehicle for communication and information, social networks act as a network of influence, through which some of their users impact on the behavior and opinions of others, with the aim of promoting products and services.
This dynamic has seen the emergence of at least two major groups. From one side, digital influencers or content creators are ordinary people, specialized professionals, politicians, artists, celebrities and sub-celebrities who somehow profit from commercially exploring social networks as a business or a work tool. On the other side, followers are those who consume digital content and products, personally interacting with creators and influencers and online content. Influencers enjoy the benefit of their influence over their audiences, while followers, in turn, take on the role of judges in relation to the content they interact with or ‘consume’.
That is precisely in in this context that the phenomenon of “cancel culture” has emerged. “Cancelling” became associate to a reprimand or boycott targeting influencers because of certain attitude and/or opinion deemed incorrect or pre-judged by their followers. In other words, while influencers dictate the behavior of their followers, followers will be attentive to all the movements of their “virtual idols”. And, in the end of the day, followers will apply a sort of “penalty” of cancelling practices when they deem it necessary. A penalty imposed by an ‘ordinary online Court’ can be severe enough to cause damage to property, transactions, loss of contracts, engagement of followers, as well as to impact relationships with sponsors and partnerships, damage to reputation. It affects the creators or influencers’ credibility and trust with their followers, threats to mental health causing depression, anxiety, and other emotional distresses, in addition of course to the domino effect on social networks, social isolation and substantial loss of career opportunities.
In the same way that the legal system tends to keep up with technological development and social stands, there are limits to the cancel culture online and ways of holding those who go overboard responsible. The Brazilian Constitution establishes as a set of fundamental guarantees to citizens in relation to inviolability of privacy, private life, honour and the image of an individual, ensuring the right to compensation for moral and economic damages arising from the violation of these autonomous rights (art. 5, X of the CF). Without distancing ourselves from each individual’s fundamental guarantees of freedom of expression and the prohibition of prior censorship, cancel attitudes can appear as a cover for more serious issues such as manifestations of intolerance in the Internet environment, including crimes such as homophobic, xenophobic, racist, neo-Nazi and religiously intolerant speech.
Additionally, punishment, reparation claims and measures against cases of cancel culture in the digital environment are challenged by the difficulty of identifying those responsible for actions or wrongful acts causing damage. The reason for this is that often the perpetrators of offenses or acts of intolerance hide behind fake profiles, or there is a very high volume of different users posting offensive comments, making it difficult to identify each individual.
Another complex factor is the liability of social media platforms for content posted by third parties. Currently in Brazil, although it is very questionable, platforms can only be held responsible for the content of their users if they fail to comply with a court order – prior and specific – determining the removal or other measure in relation to the infringing post (art. 19 of the Brazilian Civil Rights Framework for the Internet). Therefore, to date, it is still necessary to file lawsuits claiming violations of third parties’ rights on the Internet.
Adopting a proactive approach by observing good practices can help influencers protect themselves from the cancel culture. Here are some measures influencers can consider:
- Maintain a consistent and critical thinking before posting, considering that content has an impact and influence.
- Present yourself as a positive role model for followers, always being willing to listen to different perspectives and respond with respect.
- Communicate values and principles clearly on social media, attracting followers who share your views and reducing the likelihood of ideological clashes.
- Contributing to an empathetic environment, fostering constructive dialog and supporting social causes that promote digital education.
- Maintain an updated crisis management plan, anticipating possible situations, including actions to be taken in response to cancellations or reputational crises.
- Monitor your social media, keeping an eye on the conversations taking place.
- Choose your partners and sponsors carefully, ensuring that they are in line with your values and personal image.
- Protect your privacy online and offline by limiting the disclosure of too much personal information.
- Avoid relying on just one social media platform, reducing the risks of canceling on a single vehicle.
- Evaluate taking out reputation insurance, which can cover financial costs associated with crises caused by cancellation and legal disputes.
If none of this works effectively, according to current Brazilian procedural laws, parties have some remedies ahead, for example, to:
- Apply for injunctions to prevent the practice, repetition or continuation of cancellation in the digital environment;
- Seek injunctive relief to remove the illegal activity;
- Seek reparation and/or compensation (e.g. moral, material/economic and aesthetic damages);
- Adopt legal measures to identify and hold anonymous authors responsible.
Whatever the injured party’s request, the courts will decide according to the specific case, weighing up the exercise of other fundamental rights, such as freedom of expression and the prohibition of prior censorship. For this reason, it is also a challenge to predict the results of this type of action.
L.O. Baptista has gathered its seasoned professionals from the most varied areas of law to provide legal advice to digital influencers and content creators to avoid damages arising from cancel culture. Our team is prepared to remedy the reputational and material losses of those involved, as well as to advise companies that may have used influencers to promote their brands, products and services and suffered material and reputational losses as a result of cancel practices.
Co-authoria by: Denise de Araujo Berzin Reupke, Esther Jerussalmy Cunha e Fabricio Bertini Pasquot
