Brazilian Supreme and the Brazilian Internet Civil Framework: Justice Votes to Uphold the Constitutionality of Article 19
On June 4 and 5, the Brazilian Federal Supreme Court (STF) resumed the joint hearing of General Repercussion Themes 987 and 533, which address the liability of digital platforms for third-party content and the constitutionality of Article 19 of Law No. 12.965/2014 – the Brazilian Internet Civil Framework (Marco Civil da Internet – MCI).
The highlight of the session was the vote delivered by Justice André Mendonça, who diverged from the vote of the Justice-Rapporteur, Justice Dias Toffoli, by voting for the full constitutionality of Article 19. His opinion advocates for maintaining the model of subjective liability, while reinforcing procedural safeguards and supporting a model of regulated self-regulation. The key points are summarized below:
1. Article 19 is constitutional. The vote confirms that requiring a court order as a prerequisite for holding platforms liable complies with the Constitution and protects freedom of expression.
2. Private messaging is not equivalent to social media. Messaging services should not be treated as social networks. Privacy, data protection, and the confidentiality of communications must prevail.
3. Rules for extrajudicial takedowns. Content removal without a court order is only valid when based on legal or contractual provisions, provided that due process is observed: access to the reasons for the decision, preference for human review, right to appeal, and timely platform response.
4. Liability focused on the content creator. Platforms must enable the identification of violators, but liability should rest with the individual responsible for the offensive content, in accordance with Articles 15 and 22 of the MCI.
5. No liability for omissions. Platforms are not liable for failing to remove content that is later deemed offensive, unless there is a specific legal obligation to do so.
6. Procedural duties of platforms. Platforms may be held liable if they fail to apply their terms of service consistently or if they lack adequate digital security measures.
7. Call for coordinated regulation. Justice Mendonça calls upon the Legislative and Executive branches to adopt public policies grounded in a regulated self-regulation model, balancing freedom of expression with platform accountability.
The hearing was suspended and is expected to resume on June 11. The Supreme Court has not yet issued a final ruling. The decision will have significant implications for digital platforms’ obligations and regulatory risks in Brazil.
Stay informed. This case could redefine Brazil’s intermediary liability framework, with potential impacts on the technology, advertising, e-commerce, digital finance, and media sectors.
To stay up to date with the latest information on the topic, follow our dedicated page, which offers a timeline and case history, summaries of the legal arguments under debate, highlights of key regulatory impacts, international comparisons, and easy access to key documents and technical analyses.
Acess it here: Brazil’s Civil Rights Framework for the Internet: rights, responsibilities and Brazil's digital future
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