The Court is assessing whether requiring a judicial order for content removal is constitutional.
By Michelle Lima.
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Legale Overseas, no. 935.
The Federal Supreme Court (STF) has begun reviewing two cases that address the civil liability of digital platforms for content published by third parties. The Court is analyzing whether Article 19 of the Brazilian Internet Bill of Rights (Marco Civil da Internet) — which conditions liability on the failure to remove content following a specific court order — is compatible with the Constitution.
In the cases under review, the Court is considering, for example, whether the continued existence of fake profiles or offensive pages could justify holding platforms directly liable, even without a prior judicial order.
So far, three justices — Dias Toffoli, Luiz Fux, and Luís Roberto Barroso — have declared the requirement of a prior judicial order unconstitutional. In their view, the rule may hinder victims’ access to remedies in the digital environment. Justice André Mendonça dissented, defending the legal provision’s validity. In his opinion, the rule does not prevent holding the authors of unlawful content accountable but rather protects freedom of expression and ensures legal certainty for platforms, which should not be forced to act without judicial oversight.
The controversy centers on the following question: can platforms be held civilly liable for damages caused by third-party content without a court order? For part of the Court, there are exceptional cases — such as fake profiles or sponsored content — that may justify direct liability. Conversely, others argue that removing this requirement would create an imbalance, assigning platforms a supervisory role that belongs to the judiciary.
Platforms such as Google and Facebook support the current model’s constitutionality, arguing that imposing a duty of prior monitoring could undermine freedom of expression and pose risks of private censorship.
The ruling will directly impact how content moderation is regulated in Brazil, affecting both platform operations and user access to redress mechanisms. The Court is expected to resume the case analysis on the 11th.
The team at Vaz de Almeida Advogados supports companies in the strategic application of the Brazilian Internet Bill of Rights, especially in light of the Supreme Court’s evolving interpretation of platform liability. Our focus is on ensuring legal certainty and predictability in digital relations.
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