Brazilian Supreme Court Redefines the Responsibility of Digital Platforms
The Brazilian Supreme Federal Court concluded the joint trial of Extraordinary Appeals No. 1,037,396 (General Repercussion Theme 987), reported by Justice Dias Toffoli, and No. 1,057,258 (General Repercussion Theme 533), reported by Justice Luiz Fux, redefining the interpretation of article 19 of Law No. 12,965/2014 (Brazilian Internet Bill of Rights) and establishing new parameters for the civil liability of digital platforms for content published by third parties.
The decision represents a significant change in the legal framework of the Brazilian internet since the enactment of the Marco Civil da Internet (Brazilian Internet Bill of Rights). The Court understood that the rule conditioning the liability of platforms on non-compliance with a court order, as provided for in Article 19 of the Marco Civil da Internet, is insufficient to ensure the protection of fundamental rights in certain situations.
In practice, the Court broadened the scope of liability for platforms and established duties of prevention, transparency, and diligence in content moderation, creating a new legal framework that will remain in effect until eventual legislative regulation by the National Congress.
What did the Brazilian Internet Bill of Rights (Marco Civil da Internet) stipulate?
Prior to the ruling, the general rule established by Article 19 of the Brazilian Internet Bill of Rights stipulated that internet application providers could only be held liable for damages arising from content generated by third parties if they failed to comply with a specific court order mandating the removal of the material.
The model was designed to protect freedom of expression and prevent private companies from acting as arbiters of public debate, proactively removing content to avoid future liabilities.
With the growth of social media and the increased circulation of illicit content on a large scale, the Brazilian Supreme Court (STF) concluded that the requirement for judicial intervention in virtually all cases has become insufficient protection for fundamental rights such as honor, image, physical integrity, protection of children and adolescents, and defense of the Democratic Rule of Law.
What changes with this decision?
- A court order is no longer the sole requirement for establishing liability.
The main change promoted by the Supreme Federal Court (STF) consists of overcoming the rule according to which the liability of platforms necessarily depends on a prior court order.
In certain circumstances, the company may be held civilly liable for damages resulting from illegal content when, after being properly notified, it remains inactive or fails to take reasonable steps to remove it.
The decision therefore creates a broader liability regime, based not only on non-compliance with court decisions, but also on inaction in the face of manifestly illegal content.
- Duty to act in the face of serious illegal content.
The Brazilian Supreme Court (STF) established that platforms have a reinforced duty of care regarding content that represents a serious violation of fundamental rights or a risk to the constitutional order.
Among the topics explicitly mentioned in the thesis are:
- terrorism;
- anti-democratic acts and crimes against the democratic rule of law;
- racism;
- homophobia and transphobia;
- violence against women;
- sexual exploitation of children and adolescents;
- human trafficking;
- Encouragement of suicide and self-harm.
In these circumstances, the platform's omission may constitute a breach of its duty of care and give rise to civil liability.
- Establishment of systemic failure theory
One of the main innovations of the ruling was the incorporation of the concept of systemic failure into the legal framework of digital platforms.
According to the approved thesis:
“"Failure to adopt adequate measures to prevent or remove the previously listed illicit content is considered a systemic failure attributable to the internet application provider, constituting a violation of the duty to act responsibly, transparently, and cautiously."”
In these cases, liability arises not only from the presence of specific content, but also from the company's inability to prevent the massive and repeated dissemination of illegal material in its digital environment.
The logic adopted by the Brazilian Supreme Court (STF) is similar to international regulatory models based on due diligence duties and mitigation of systemic risks.
- Stricter treatment for boosted content and digital advertising.
The Supreme Federal Court (STF) also established stricter criteria for content that is sponsored, boosted, or distributed for remuneration.
When a platform has a financial stake in expanding the reach of certain content, it may be presumed liable if the publication is deemed illegal.
The Court recognized that, in these situations, the company does not act merely as a technical intermediary, but actively participates in the circulation, promotion, and monetization of the content.
- Obligation to remove content that has already been declared illegal.
Another relevant point is the obligation to remove content that is identical or equivalent to content that has already been judicially recognized as illegal.
The measure seeks to prevent the successive reproduction of publications already declared illegal, avoiding the need for multiple court decisions on substantially identical content.
- Duty to act in relation to fake accounts and fraudulent profiles.
The decision also imposes on the platforms the duty to adopt effective mechanisms for identifying and addressing complaints related to fake profiles used to commit illegal acts.
The persistence of fraudulent accounts after proper notification may be considered a relevant element in establishing the platform's liability.
- Expansion of transparency and governance obligations
In addition to the rules of civil liability, the Supreme Federal Court (STF) established structural duties aimed at the governance of the platforms.
Companies should ensure:
- Accessible channels for user support;
- notification and decision appeal systems;
- Mechanisms for reviewing removed content;
- transparent moderation policies;
- periodic transparency reports;
- Internal procedures compatible with the protection of fundamental rights.
The goal is to increase the predictability, accountability, and transparency of content moderation processes.
- Mandatory legal representation in Brazil
The Supreme Federal Court (STF) also ruled that the platforms must maintain a legal representative in Brazil with the power to respond administratively and judicially on behalf of the company.
The measure seeks to ensure greater effectiveness in the enforcement of court decisions and to facilitate the accountability of companies operating in the Brazilian market without an adequate institutional presence in the country.
- 60-day deadline for platform adaptation.
When ruling on the motions for clarification, the Supreme Federal Court (STF) established a 60-day deadline for digital platforms to make the necessary adaptations to comply with the new obligations set by the Court.
During this period, companies must implement governance, transparency, and moderation mechanisms consistent with the approved thesis, as well as ensure legal representation in the country and adequate structures for receiving and processing notifications.
Establishing a transition period aims to ensure legal certainty and allow platforms to make the necessary technical, operational, and institutional adjustments to adapt to the new legal framework.
What hasn't changed?
The decision did not revoke Article 19 of the Brazilian Internet Bill of Rights nor did it establish strict liability for platforms for all content published by users.
Accountability remains conditional upon demonstrating negligence, failure to fulfill duties of care, or significant failures in mechanisms for preventing and removing illegal content.
Furthermore, the Supreme Federal Court (STF) upheld the need for judicial intervention in cases where there is reasonable doubt about the legality of the content, seeking to prevent arbitrary removals and protect freedom of expression.
Also excluded from the decision were private interpersonal communication services, such as instant messaging applications, email, and platforms exclusively dedicated to the private exchange of messages.
Conclusion
The Brazilian Supreme Court's decision substantially alters the model for holding digital platforms accountable in Brazil. The system, previously centered on the requirement of a court order, will now coexist with autonomous duties of prevention, transparency, due diligence, and removal of manifestly illegal content.
The thesis established by the STF (Supreme Federal Court) recognizes that platforms play a relevant role in the circulation and amplification of information, which is why they cannot remain completely immune to the damage produced in their digital environments.
At the same time, the Court sought to preserve guarantees related to freedom of expression, avoiding the automatic liability of platforms and maintaining judicial action as a control mechanism in controversial or legally complex situations.
With a 60-day deadline for companies to adapt, the ruling inaugurates a new regulatory paradigm for social networks and other digital applications, whose effects should influence the operation of platforms, the protection of fundamental rights in the digital environment, and the future legislative debate on internet regulation in Brazil.
Article written by: Leonardo Neri and Nicoly Crepaldi.
- “"The ruling acknowledges that recommendation algorithms and boosting mechanisms are not neutral elements in the circulation of information."”
- “"The requirement for a prior court order, designed to protect freedom of expression, has come to be seen by the Supreme Federal Court as insufficient given the speed at which illicit content spreads."”
- “"The new interpretation of Article 19 seeks to balance two equally important constitutional values: freedom of expression and the protection of fundamental rights."”
- “"By requiring legal representation in Brazil, the Supreme Court seeks to reduce obstacles to the effectiveness of judicial decisions and the accountability of platforms."”
- “"The decision does not impose a general duty of prior monitoring, but it does require platforms to take a more proactive stance against manifestly illegal content."”
- “"The main challenge of the new regime will be to prevent the increased responsibility of platforms from resulting in excessive removals of legitimate content."”