Brazil’s Supreme Court Partially Strikes Down Internet Law Provision, Imposes Stricter Duty of Care on Online Platforms

On Thursday, June 26, the Brazilian Supreme Federal Court (STF) issued a landmark ruling, partially invalidating Article 19 of the Brazilian Internet Bill of Rights (Marco Civil da Internet, or “MCI”). By a majority vote, the Court found the provision unconstitutional to the extent that it fails to adequately protect fundamental rights and democratic values. The ruling imposes a higher standard of care on internet platforms when managing user-generated content.

Previously, Article 19 established a “safe harbor” regime for platforms, under which they could only be held civilly liable for third-party content if they failed to comply with a specific court order requiring removal. This framework was based on a subjective fault standard, largely shielding platforms from liability.

However, the STF found this immunity excessive. According to the Justices, the existing rule contributed to the unchecked spread of harmful content – such as hate speech, disinformation, and attacks on democratic institutions – by disincentivizing proactive moderation. The Court’s new interpretation seeks to strike a better balance between freedom of expression and the need to prevent digital harms.

Under the new precedent, platforms operating in Brazil must exercise a qualified duty of care, including the use of effective mechanisms to detect and remove manifestly illegal content, particularly when it is widely disseminated or poses significant harm. This includes the implementation of transparent and efficient content moderation policies, investments in artificial intelligence, specialized moderation teams, and accessible reporting channels for users.

The Court also clarified how Article 19 should apply across different contexts:

1. Defamation and Similar Offenses: Court orders remain the standard for content removal in most cases, but clearly offensive content may be taken down upon extrajudicial notice. If content already declared illegal by a court is reposted, platforms must remove identical content upon simple notification—no new court order required.
2. Private Communications: For private messaging services (e.g., email, video calls, WhatsApp), the original rule under Article 19 remains unchanged due to constitutional protections on the confidentiality of communications. For marketplaces, however, consumer protection laws apply when platforms act as suppliers or intermediaries.
3. Platform Compliance Requirements: All application providers must adopt certain mandatory measures, including:
4. • self-regulation systems with notification and appeal mechanisms;
   • publication of regular transparency reports;
   • user-friendly complaint and support channels;
   • local legal representation in Brazil with authority to respond to judicial and administrative proceedings.

Although the decision does not specifically address intellectual property rights, it nonetheless represents a significant advance in the digital enforcement landscape. By easing the requirement for a court order in certain scenarios, the ruling creates an important precedent that could benefit rights holders.

Notably, the STF emphasized a presumption of liability in cases involving paid promotion or automated dissemination (e.g., bots). In such situations, platforms may bear a greater burden to prove they acted diligently in removing infringing or harmful content. This shift enhances the legal position of copyright and trademark owners, particularly when infringing content is monetized or artificially amplified.

In short, while intellectual property violations are not automatically exempt from the judicial order requirement, the ruling encourages platforms to adopt a more proactive and responsible posture – making a positive development for IP enforcement in the digital sphere.

For end users, the expectation is a safer online environment with fewer illicit or harmful posts. However, the real impact of this decision will depend on how well platforms and the judiciary implement and apply the new standards going forward.