Duty of content moderation for WhatsApp group administrator

Abstract

This article aims to study the duty of moderation of WhatsApp group administrators and their responsibility for the acts of third parties. The context is the importance of information exchange via messaging apps and through groups in Brazilian society, as revealed by research data on the penetration of this form of communication. Although this is a prevalent reality in everyday life, the discussion about a duty of moderation has remained limited to the application providers, relegating the activities of these administrators, who have immediate contact with discussions and the power to intervene, to the background. The absence of specific legislation corroborates the legal uncertainty surrounding the issue. Therefore, the following problem is presented: are WhatsApp group administrators obligated to moderate? The first section addresses the nature of WhatsApp groups and their elements. The second section examines the foundations for triggering a duty to act in the case of omission. It explains that the legal duty can be based on one of the general clauses of articles 186 or 187 of the Civil Code, requiring a case-by-case analysis using guiding criteria formulated in the research. It offers a practical solution for the administrator to avoid being bound by a legal obligation to moderate. It establishes that there is no contractual duty of moderation for the administrator, according to the Terms of Service of the company providing the communication infrastructure. It discusses the nature of the rule governing the relationship between group members as statutory and concludes that a duty of moderation can be established as well as the exclusion of this obligation or the duty to indemnify.