Brazil's new internet intermediary liability regime is underway. The implementation of
changes
established by the Supreme Court includes notice and takedown mechanisms and duty of care obligations. Caution is crucial as these measures can create problematic incentives for
enforcement overreach
and
over censorship
of protected speech.
The court in June issued a new decision
clarifying elements
of its 2025 finding that the previous liability regime was partially unconstitutional. The government also published in late May two presidential decrees that detail how the new rules apply.
Under the new regime, social media platforms and other internet applications that curate or interfere with posts can be held liable for third-party content if they don’t remove it after being notified by the user seeking take down unless there's a reasonable doubt that the content is unlawful. For certain specific cases, like crimes against honor (e.g. defamation), platform liability still depends on failing to comply with a judicial order.
For some serious crimes, like human trafficking and crimes against women, applications have a
duty of care
to remove related content immediately and can be held liable when systemically failing to do so. The precise limits of what constitutes a systemic failure are still unclear. There are also stricter rules for paid ads, boosted content, and bots.
The previous regime, set by Article 19 of the
law
known as the Brazilian Civil Rights Framework for the Internet (“Marco Civil da Internet” in Portuguese), sought to protect freedom of expression online by holding internet application providers liable for user content if they failed to comply with a judicial order to remove it. There were specific, limited exceptions to this rule, like the unauthorized disclosure of nude or private sexual images. This was meant to prevent providers from over-removal of user content to avoid legal action. Yet, the court found that this provision f
