The Supreme Federal Court (STF), in ruling on Extraordinary Appeals No. 1,037,396 (Theme 987) and No. 1,057,258 (Theme 533), established a new interpretation regarding the civil liability of internet application providers, declaring Article 19 of the Marco Civil da Internet (Law No. 12,965/2014) partially unconstitutional.
The decision represents one of the most significant regulatory changes in Brazil’s digital environment since the Marco Civil came into force and has direct impacts on social networks, digital platforms, marketplaces and other application providers operating in the country.
What changes?
Until now, the general rule provided that platforms could only be held liable for harm caused by user-generated content after failing to comply with a specific court order to remove the material — and even then only within the technical limitations of the service. In other words, the regime was reactive.
Under the new guidance, the STF found that this model does not offer sufficient protection for fundamental rights and democracy, expanding the circumstances in which providers may be held liable for their actions or omissions. This changes the legal logic toward a preventive and proactive approach.
Main points of the decision:
1. Partial unconstitutionality of Article 19
The STF recognized that the requirement of a prior court order as a general prerequisite for holding platforms liable is insufficient given the current dynamics of social networks and the massive circulation of illicit content. This means platforms must provide easy reporting channels and monitoring for rapid action, as well as implement technical measures to curb the boosting and monetization of clearly criminal content.
2. Liability upon notice under various scenarios
In this sense, the Judiciary and the Executive assume an active role in light of the Legislative gap, pending new legislation. During this period, platforms may be held civilly liable for damages arising from certain unlawful content when, upon becoming aware of the irregularity, they fail to take appropriate measures to remove or mitigate risks, and fail to demonstrate proactive and preventive measures to avoid such occurrences.
3. Special liability framework for defamation offenses
In scenarios involving slander, defamation, and libel, the logic of Article 19 of the Marco Civil da Internet remains applicable as a general rule, maintaining the relevance of a court order for the purposes of the provider’s civil liability. The STF, however, recognized the possibility of voluntary removal upon extrajudicial notice.
4. Enhanced duty of care and prevention
The Court established that platforms must adopt effective mechanisms for the prevention and removal of severe unlawful content, especially when there are systemic failures in their moderation models.
5. Severe unlawful content
The STF highlighted the need for more swift action in situations involving, among other issues, terrorism, attempted coups d’état, racism, homophobia, violence against women and children, and content promoting self-harm or suicide.
6. Advertising and content boosting
The decision also established a presumption of liability in situations involving paid advertisements, boosted content, and artificial networks for content dissemination, without prejudice to the platform’s ability to demonstrate diligent action.
7. Legal representation in Brazil
Providers operating in the country must maintain a legal representative and an infrastructure capable of serving authorities and complying with judicial and administrative orders.
Implications for businesses
The decision is likely to significantly increase the level of governance expected from digital platforms, requiring:
1. A review of content moderation and removal policies;
2. The improvement of reporting channels and response to notifications;
3. The strengthening of digital compliance programs;
4. A review of contracts, terms of service, and internal policies;
5. The implementation of mechanisms for traceability, auditing, and regulatory risk management.
Next Steps
Although the STF has established parameters for immediate application, the Court recognized the need for legislative action to regulate the matter more comprehensively. This provides an opportunity for industry associations and representative entities to submit proposals for updating the regulations, the pending status of which remains with the National Congress. Furthermore, the Court itself is still reviewing motions intended to clarify and fine-tune specific aspects of the established binding precedent.
How We Can Help
Our team closely monitors the developments of this decision and is prepared to support organizations in assessing regulatory impacts, drafting technical memos, legislative tracking, engaging with authorities, reviewing internal policies and procedures, adapting content moderation mechanisms, managing digital incidents, and handling specialized litigation in digital disputes and technical forensics.
For more information or to schedule a meeting with our experts, please contact us at contato@peckadv.com.br.
Prepared by: Patricia Peck, PhD, CEO and Founding Partner, and Henrique Rocha, Partner.
