The Brazilian Civil Rights Framework for the Internet (MCI) established, under Article 19, that internet service providers could only be held liable for damages arising from third-party content if they failed to remove such content after being ordered to do so by a court.
This rule was designed to safeguard freedom of speech and prevent prior censorship.
Recently, however, this model has come under criticism. In response, the Brazilian Supreme Federal Court (STF) partially declared Article 19 unconstitutional and redefined the liability of digital platforms for user-generated content.
Below are the eight main practical takeaways from the ruling:
1. Internet application providers may now be held civilly liable under Article 21 of the MCI for damages caused by third-party content involving criminal offenses (with the exception of crimes against honor, which remain governed by Article 19), unlawful acts, and inauthentic accounts. In these cases, an extrajudicial notice from the user suffices to trigger the provider’s duty to remove the content, under penalty of liability.
2. Providers may be held liable for third-party content even without prior notification in the following scenarios: (a) paid advertisements or sponsored content; and (b) artificial distribution networks, chatbots, or automated bots. Providers may avoid liability if they can demonstrate that they acted diligently and within a reasonable timeframe to make the content unavailable.
3. Providers will be liable for failing to immediately remove content that constitutes serious crimes (such as anti-democratic acts, terrorism, child pornography, etc.). In such cases, liability will attach if it is proven that the provider failed to adopt the best available preventive measures, based on current technology, to remove the content.
4. Even after content is removed, users may seek judicial reinstatement of the publication, provided they can show that it was not unlawful. If the court orders the restoration of the content, the provider shall not be subject to indemnification.
5. Certain services will remain subject to Article 19 of the MCI, including email services, closed video or voice conferencing platforms, and private messaging services. The same regime will also apply to online marketplaces, whose liability will be governed by the Brazilian Consumer Protection Code.
6. Providers must adopt self-regulation measures, including: (a) implementation of notification systems and due process procedures; and (b) transparency reports concerning removed content.
7. Providers operating in Brazil must establish a physical presence and legal representation within the country.
8. The STF’s decision will have prospective effect, applying only to future situations.
In summary, four distinct liability regimes now coexist: (i) Article 19 of the MCI – applicable to crimes against honor, requiring a court order for content removal; (ii) Article 21 of the MCI – applicable to criminal or broadlyunlawful acts, triggered by extrajudicial notification; (iii) a duty of care – applicable to a specific list of serious crimes, based on the provider’s use of current best practices and technologies; and (iv) a presumption of liability – for paid advertisements or sponsored content, as well as artificial distribution via bots. The previous regime remains applicable only to specific services, such as email, video conferencing, private messaging, and marketplaces.
The STF’s ruling marks a mileston in the regulation of the internet in Brazil. By overhauling the liability framework for internet service providers, the Court not only reinterpreted the MCI in a profound way but also established a heightened standard of care and responsibility for digital platforms. This transformation will significantly impact how providers operate and formulate internal policies, requiring them to adapt to a more complex and demanding legal environment, thereby reshaping the foundations of content moderation and online interaction management in the country.
