On Thursday, June 26th, the Brazilian Supreme Federal Court (STF) concluded its decision regarding the civil responsibility of tech platforms for content posted by their users. By a vote of 9 to 3, the justices declared the partial unconstitutionality of Article 19 of the Internet Civil Framework (Law No. 12,965). As a result, companies may now be held responsible for user content, even without a specific court order.
Announcing the outcome, STF President Luís Roberto Barroso denied that the Court was overstepping its bounds or encroaching on the powers of the Legislative branch. “The court is not legislating. The court is deciding on two concrete cases brought before it, and we are establishing criteria that will prevail until the Legislative branch, if and when it sees fit, decides to regulate the matter,” he stated.
Article 19 of the Internet Civil Framework outlines the principles, guarantees, rights, and duties for internet usage in Brazil, specifying that platforms would only be held civilly responsible for user content through a specific judicial order. The law states that this rule aims to “ensure freedom of expression and prevent censorship.”
In their decision, the justices stated that “there is a state of omission arising from the fact that the general rule of Article 19 does not provide sufficient protection to constitutionally significant legal interests, fundamental rights, and democracy.” Therefore, the Court now considers it the responsibility of companies to create mechanisms to remove criminal content from platforms without requiring a court order.
However, the justices upheld the application of Article 19 in cases of so-called “honor crimes,” such as slander, insult, and defamation, which will still require a court order for content removal.
Alexandre Arns Gonzalez, a research fellow at the Institute for Applied Economic Research (Ipea) and a member of the Communication Rights and Democracy organization (DiraCom), explains that the exception recognized by the justices aims to preserve the legislator’s original intent when drafting the rule.
“The idea of protecting this type of crime under the liability method outlined in Article 19 is a way to preserve the spirit of safeguarding that the article carried at the time, which was specifically designed to protect journalists and communicators from persecution and censorship,” he explained.
The decision also outlines the duty of caution that platforms must exercise regarding serious illegal content, such as crimes against democracy and child pornography. It establishes presumed responsibility in cases involving paid advertisements or artificial content distribution networks. Furthermore, it imposes additional requirements for self-regulation, transparency, and local representation in Brazil by platforms, with the goal of balancing freedom of expression with abuse prevention.
One expected effect of the new interpretation of Article 19 is that companies will adopt mechanisms to notify and remove irregular content, similar to existing processes used to protect intellectual property and copyright.
Which Crimes Must Be Monitored
In the decision concluded this Thursday, the justices listed a series of offenses deemed “serious illegal acts” that impose a duty of caution on internet application providers. These include:
- Anti-democratic acts and behaviors that fall under criminal offenses defined in the Brazilian Penal Code;
- Terrorism and preparatory acts of terrorism as outlined in Law No. 13,260/2016;
- Inducing, encouraging, or assisting suicide or self-harm, as defined in Article 122 of the Penal Code;
- Incitement to discrimination based on race, color, ethnicity, religion, national origin, sexuality, or gender identity—including homophobic and transphobic conduct;
- Gender-based crimes against women, including content that spreads misogynistic hate;
- Sexual crimes against vulnerable individuals, including child pornography and other severe offenses against children and adolescents;
- Human trafficking.
How did the justices vote?
Ahead of Thursday’s session, the justices met to finalize the legal framework that would be adopted in the decision. During the proceedings, three main positions emerged:
- Justice Dias Toffoli, the rapporteur for one of the cases, was joined by Justice Alexandre de Moraes in advocating for the complete unconstitutionality of Article 19—including in cases involving crimes against honor.
- Chief Justice Luís Roberto Barroso offered a dissenting opinion, arguing that Article 19 should remain valid for crimes against honor, and was supported by Justices Luiz Fux, Flávio Dino, Cármen Lúcia, Gilmar Mendes, and Cristiano Zanin.
- Justices André Mendonça, Edson Fachin, and Nunes Marques voted to uphold the constitutionality of Article 19 in its entirety, maintaining that the law should continue to be applied as it has been since its enactment in 2014.
What about the Congress?
Despite the Supreme Court’s landmark decision, the need for structural and systemic regulation of digital platforms in Brazil remains squarely in the hands of the National Congress. In the lower house, federal lawmaker Orlando Silva (PCdoB–SP) led a working group to draft Bill 2630/20, known as the Brazilian Law on Freedom, Responsibility, and Transparency on the Internet. The proposal has been stalled in Congress since May 2023. Its main goal is to establish rules to combat the spread of disinformation on social media.
According to Silva, the decision presents a new challenge for lawmakers: “Now, we must face this issue in light of the interpretation the Supreme Court has given to Article 19,” he said. “Regulation of digital platforms is a global concern being debated in the world’s leading democracies. It will continue to be debated here in Brazil and, sooner or later, Parliament will need to address and vote on it. After all, no economic sector—especially one with such massive societal impact—can be exempt from basic service regulations.”
Silva rejected criticism from some lawmakers who have accused the judiciary of overreach, arguing instead that Congress has failed to act. “The Court is simply fulfilling its constitutional duty. It was asked to rule on the constitutionality of Article 19 of the Internet Civil Framework through extraordinary appeals—years ago. While the Legislature may choose to remain silent, the Judiciary, once provoked, has a duty to rule. So there is nothing to complain about,” he told Brasil de Fato.
What does the bill say?
Under the draft bill currently in the Chamber of Deputies, social media and messaging service providers would be required to implement tools to ban fake accounts—except those clearly marked as humorous or parody—and also to restrict the use of automated, bot-managed profiles. The bill also calls for limits on how many users or groups can receive the same forwarded message, as well as caps on group sizes.
Users would have to be notified whenever a complaint is filed or any enforcement measure is applied under the law. All paid content on social networks would need to be clearly labeled, with full disclosure of the account responsible for boosting it.
The proposal also mandates the creation of a Council for Internet Transparency and Responsibility, to be established within 60 days of the law’s passage. The council would consist of 21 members, representing public institutions, civil society, academia, and the private sector.
Additionally, the bill requires that social media and private messaging providers maintain a physical presence in Brazil and appoint legal representatives in the country. They would also need to publish quarterly transparency reports detailing the actions taken to comply with the law.
Finally, companies that fail to comply with the regulations could face fines of up to 10% of their total revenue in Brazil, with those funds earmarked for Fundeb, Brazil’s national education development fund, to support digital literacy and education initiatives.
