Brazil: Supreme Court moves to declare Article 19 of the Brazilian Internet Bill of Rights unconstitutional

The Supreme Federal Court formed a majority to declare unconstitutional the article limiting the liability of digital platforms in cases where there is a court order to remove content. If this decision is confirmed, platforms would be liable for their users’ illegal posts if they fail to remove them or if they amplify them

Photo: Antonio Augusto/Supremo Tribunal Federal (STF)

As the judges of Brazil’s Supreme Federal Court (STF) continue to present their positions, it was learned on June 11 that a majority had formed within the body to declare Article 19 of the Internet Bill of Rights (MCI – Law 12.965/14) unconstitutional. The article establishes that digital platforms can only be held civilly liable for damages arising from third-party content if, having received a court order, they fail to remove the content in question. The vote is still ongoing, but the positions made public so far anticipate a possible paradigm shift in the liability regime for platforms.

The Supreme Court is evaluating whether the provision violates Brazil’s constitution by unduly restricting the right to obtain compensation for damages and fostering impunity in digital environments. It is also considering whether certain types of content, such as hate speech, deepfakes, threats, fraud, fake accounts, or paid dissemination of offensive material, justify direct liability for platforms, even without a court order.

Currently, according to Article 19 of the law, social media platforms can only be held liable for damages caused by their users if they refuse to remove content after receiving a court order. This could change if this article is declared unconstitutional, as they could also be held liable for their users amplifying or failing to remove third-party content that is manifestly illegal. What could happen then? Digital platforms that rely on the publication of third-party content will be required to proactively remove illegal content (they already do so, but based on their own criteria and not explicit legal obligations), as well as to not allow monetization of illegal content, if some of the opinions expressed by Brazilian judges these days are sustained.

The votes of the Supreme Court

So far, seven of the eleven Supreme Court judges have ruled against the unconstitutionality (in whole or in part) of Article 19: Flávio Dino, Dias Toffoli, Luis Fux, Luís Roberto Barroso, Cristiano Zanin, Gilmar Mendes, and Alexandre de Moraes. There are nuances, including differences in terms of greater or lesser liability for companies.

Toffoli and Fux voted for the article’s complete unconstitutionality, suggesting the adoption of objective duties of care and the direct liability of platforms in cases of content originating from inauthentic accounts.

Barroso and Dino, on the other hand, proposed maintaining the requirement for a court order for crimes against honor, but requiring that extrajudicial notification in cases of manifestly illicit content be sufficient for the removal of certain posts. Barroso also raised the obligation to submit transparency reports, following the European model, and the need for future regulation by Congress. Dino, on the other hand, proposed that the Attorney General’s Office oversee compliance with these procedural obligations until a new law is passed. He also assigned direct liability to the platforms for their own actions, “such as paid boosting and inauthentic profiles.”

Zanin and Mendes also voted for partial unconstitutionality. Zanin proposed a differentiated regime between extrajudicial notification for manifestly unlawful content, a court order for complex cases, and duties of care, procedural rules, and modulation of the effects of the decision. Mendes, for his part, defended the need for a court order in crimes against honor and in relation to journalistic content, and proposed a system of four liability regimes, with an emphasis on presumptions for sponsored content and direct liability in serious cases. In his case, he defended procedural obligations and the attribution of oversight to the National Data Protection Agency (ANPD).

The last to vote, as of press time, was Alexandre de Moraes, who also ruled that Article 19 was unconstitutional, questioning the effectiveness of self-regulation and stating that “freedom of expression is not freedom of aggression.” Moraes questioned the effectiveness of platforms’ self-regulation, which he described as flawed or nonexistent.

For the time being, the only vote in favor of maintaining the constitutionality of the article was that of Minister André Mendonça. In his argument, he defended due process and freedom of expression, which he asserted must be protected, allowing the disclosure of information that could hold “powerful public institutions, as well as political elites and digital platforms, accountable.” He voted to ensure that content removal and account suspension could only occur for legal or judicial reasons and warned of the risks of automatic content moderation. He proposed a model of regulated self-regulation, with internal moderation protocols and greater transparency on the part of the platforms.

While the majority allows us to anticipate the final outcome, the voting has not yet concluded. Three judges, Carmen Lúcia, Edson Fachin, and Nunes Marques, have not yet spoken. With a simple majority, the verdict will be considered approved once the voting has concluded and the results have been published.

After the closing of the voting process, the Supreme Court will suspend its review of the case to consolidate a unified decision that reflects the common ground among the majority votes and to define the specific mechanisms through which platforms can be sanctioned.

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