One of the most controversial discussions regarding major digital platforms concerns the constitutionality of Article 19 of Law 12,965/2014 (known as the “Brazilian Internet Framework” or “Marco Civil da Internet”), which addresses the liability (or exemption from liability) of internet application providers for damages resulting from third-party content in cases where there is no judicial order for removal.

The Brazilian Internet Framework and Supreme Court cases This controversial topic, which touches on issues such as freedom of expression and platforms’ monitoring capabilities, has been under consideration by the Brazilian Supreme Court (STF¹) for several years. It originated from two main cases in 2017 and 2018, which resulted in moral damages convictions at the appellate level against two of the world’s largest digital platforms due to third-party content on their applications.

The two main themes under discussion, cases 533 and 987, are being processed before the STF as Extraordinary Appeals and have been subject to various debates throughout their years of proceedings, always involving the compatibility between freedom of expression and other constitutional rights, such as honor, image, and human dignity, allegedly made vulnerable by Article 19 of the Brazilian Internet Framework.

The trial process and new interpretation In March 2023, the STF held a public hearing with participation from various sectors of society but postponed the trial to 2024. The trial resumed on June 4 this year, and by June 11, a majority was formed to reinterpret Article 19 regarding digital platforms’ responsibility for third-party content. Although a final decision is still pending, all signs indicate that liability is inevitable, though there remains disagreement among the justices regarding the “limits of unconstitutionality” and what the platforms’ new responsibilities will be.

The original wording of Article 19 aimed to protect freedom of expression, with content removal responsibility existing only under judicial order. However, following the STF’s decision, platforms will be required to remove content – which could be characterized as censorship – prior to judicial decisions, leading to even more controversial issues.

Consequently, content removal by digital platforms will become common due to fear of liability and potential litigation, which in itself may constitute prior censorship.

Impacts and risks of the decision In this scenario, the number of lawsuits may increase significantly, either seeking compensation for damages caused by unremoved content or for improper removal of content classified as “inappropriate” by platforms (noting that there has been no discussion yet about whether the ruling will have retroactive effects).

Additionally, operational costs for internet application providers are expected to increase significantly. Given that it’s humanly impossible to monitor and classify all content published on social media, large platforms will need to implement various technologies and measures for swift and automated monitoring, which may also lead to errors, whether false positives or false negatives regarding content.

For smaller platforms, the impact will be even more significant, considering their inability to comply with potential new obligations, faced with increased costs and potential litigation due to published content.

Finally, the new interpretation of Article 19 may create opportunities for unfair competition, where digital platforms could be harmed by bad-faith third parties deliberately generating harmful content. Thus, the operational risk for platforms becomes even greater.

Given the majority already formed by the STF in the aforementioned trial, although it’s still possible to define certain limits regarding obligations to be imposed on large platforms (due to the interpretation given to Article 19 of the Brazilian Internet Framework), the future of social media and major internet platforms in Brazil, especially regarding users’ exercise of freedom of expression and the risks highlighted above, becomes quite uncertain.

Notes

¹STF: Supremo Tribunal Federal (Brazilian Supreme Court), Brazil’s highest court for constitutional matters.