Abes and FecomercioSP discuss STF decision that changes the Internet Civil Framework and brings consequences for the regulatory environment in Brazil
The proliferation of harmful content on the internet—such as that which incites hatred against certain groups or encourages criminal acts—is a global problem that has led countries to adopt strong measures to combat it. However, experts believe that the recent decision by the Supreme Federal Court (STF), which declared Article 19 of the Brazilian Civil Rights Framework for the Internet (BCE), which defines rules regarding civil liability for third-party content, partially unconstitutional, went beyond this objective by imposing excessive and indiscriminate liability on all actors in the digital ecosystem.
The understanding is that the Supreme Court should have limited itself to expanding regulation against objectively harmful material, such as hate speech, racism, and violence, without creating obligations that harm companies of all sizes and increase legal uncertainty. To this end, it could have defined in Article 21 of the Civil Code—which mandates the immediate and mandatory removal of content—the types of material subject to this procedure, such as those that endanger children and adolescents, attacks against women, racism, and incitement to violence.
"I believe this was the critical point we needed to regulate, and the Supreme Court ended up going far beyond this regulation, adopting the rule that, for any crime, with a mere notification, the platform is obliged to remove the content from the air — and if it doesn't do so, it will be held jointly responsible," said lawyer and founder of ITS Rio, Ronaldo Lemos, during the webinar. Impacts of the Supreme Federal Court's decision on the Internet Civil Rights Framework, carried out by Brazilian Association of Software Companies (Abes), with the support of Federation of Commerce of Goods, Services and Tourism of the State of São Paulo (FecomercioSP), last Wednesday (2).
Decision affects small businesses more than Big Techs
Another point of concern for experts is that the Supreme Court, while focusing on Big Tech, made a decision that affects the internet as a whole. According to Lemos, the Supreme Court based its decision on European legislation, but in adapting these objectives to the Brazilian context, it failed to consider that, in Europe, there is a clear distinction between the liability applied to large technology companies and others.
"The Supreme Court's decision affects not only Google, Meta, Amazon, and all Big Tech companies, but also small forums, newspaper comment boxes—like Folha and UOL—small content server operators, internet forum managers, Reclame Aqui, iFood, and OLX. In other words, everything is covered by the Supreme Court's decision," he noted.
Rony Vainzof, partner at VLK Advogados and Data Protection consultant at FecomercioSP, agrees that it would have been more appropriate if the Supreme Court had simply expanded the scope of crimes that don't require notification to be taken down. With the decision, however, the impact was greatly expanded, affecting several platforms. "What we're discussing here isn't just Big Tech, but also small and medium-sized companies and any and all online services, with some exceptions established by the Supreme Court," he explained.
In practice, this represents enormous pressure on software companies, especially smaller ones, which will be the most affected—as they will face technical and operational difficulties in complying with the new requirements. Big Tech companies, on the other hand, have greater resources and infrastructure to adapt their systems.
According to Daniella Caverni, director of Abes and partner at Efcan Advogados, while previously, content removal depended on judicial moderation, this role is now the responsibility of the apps. As a result, they will have to quickly invest in proactive technical measures. This may include the implementation of Artificial Intelligence (AI), filters, predictive analytics, audits, and reporting—mechanisms that small businesses likely lack. Furthermore, it may involve more staff, since, depending on the material, the decision to remove it can be subjective. "And so, we need human sensitivity to examine it and determine whether it will, in fact, be necessary to remove that content," she added, highlighting the extent of the decision's potential practical impact.
Daniella also expressed concern that software companies would have to moderate the immense volume of online content in light of the new responsibilities imposed by the Supreme Court's decision.
Legal uncertainty and the consequences for freedom of expression
Experts also highlighted the lack of clarity created by the decision. Lemos believes the Supreme Court is replacing an objective law—the Brazilian Civil Rights Framework for the Internet—with a confusing liability system. The change creates four distinct systems for assigning liability, increasing the complexity of determining which one applies to each case.
However, there is also a perverse effect on freedom of expression: the Penal Code is extensive, and while a court order is still required for content removal in cases of honor-related crimes, a notification is sufficient for all others. This includes advocating crime, contempt of court, and extortion—broad terms that, according to the lawyer, can censor legitimate debates and journalistic denunciations, for example.
Academic Demi Getschko expressed concern about the return of the practice notice and takedown, which requires the immediate removal of content after simple notification, without further evaluation. This model was widely rejected by the international community about 10 to 15 years ago. In the United States, it is applied exclusively in cases of copyright infringement. In countries like Canada, upon receiving a notification, platforms forward it to the author for comment.
"Looking at it very simplistically, it gives the impression that you assume the person is guilty before anything else, instead of assuming they're innocent," he noted. "All Brazilians can complain about something, and this should be taken into account immediately," he added.
Implications for platforms and marketplaces
In the context of marketplaces, the Supreme Court's decision ultimately affects several types of services that cannot be treated uniformly, as each has specific characteristics and responsibilities. This understanding, in fact, is already provided for in Article 3 of the Brazilian Civil Rights Framework for the Internet, which establishes that agents should be held accountable according to the nature of their activities. Furthermore, it would be up to the Legislature to evaluate all the ramifications of internet applications.
Vainzof pointed out that, from the moment an intermediary receives an extrajudicial notification—with the exception of cases of crimes against honor—they become civilly liable if they fail to remove content related to any unlawful act. "So, in addition to the excellent examples Ronaldo already gave, just imagine trademark infringement, which doesn't fall under copyright infringement or the exception for crimes against honor?" he asked. "This can lead to enormous subjectivity," he added.
He also cited the risk of mass content removal for fear of liability and, conversely, even greater judicialization, as there will be increased demand for legal action in these situations. Furthermore, he emphasized that, contrary to what is being proposed in Brazil, other countries adopt an approach based on systemic risk assessment regarding noncompliance with the law—which could lead to sanctions.
Repercussions in the digital environment
In the case of ads with paid boosting and the use of artificial distribution networks, Vainzof warned that, in the digital advertising market, platforms that automate the purchase and display of ads could be held liable for third-party content, even without editorial participation — which, according to the expert, approaches strict liability and raises concerns about the consequences caused and how this sector operates.
The Supreme Federal Court's decision also requires all providers operating in Brazil to establish headquarters and legal representation in the country. However, the Brazilian Internet Bill of Rights (Marco Civil da Internet) already requires companies operating in the Brazilian market to comply with Brazilian law, without requiring the establishment of headquarters or the presence of a local representative, the same logic adopted by the LGPD.
"I'm not saying that companies wanting to explore the domestic market don't have to comply with Brazilian law. Of course they do, but the requirement to establish headquarters and have a legal representative in the country could be excessive and could discourage digital services in general," he criticized.
Another issue raised was whether providers could be held liable for failing to promptly remove content related to serious crimes, based on the so-called duty of care for systemic failure. In these cases, liability will not arise for the isolated presence of illicit content, but rather when there are structural failures in the platform's control. However, this type of duty, in other legislation, is usually accompanied by a regulatory body that assesses the circumstances of the failure—a requirement not covered by the Supreme Court's decision and could make enforcement confusing or even harmful.
Role of the Legislature
Given this situation, experts argue that it would be up to the legislature, through a broad and in-depth debate with society, to discuss accountability in the digital environment. The decision should not be made through legal action, but through the law, since restrictions on freedom of expression cannot be implemented through other means.
“We could not fail to express here our disagreement with this lack of alignment between the powers so that we can advance towards a truly full democracy, with people enjoying their rights,” said Andriei Gutierrez, president of Abes and Digital Economy and Innovation Council from FecomercioSP.
"Technology is always much faster than any legislation. Therefore, any law regulating technology and the internet must be very careful and cautious," Daniella emphasized, indicating the need for caution so that the legislation doesn't become obsolete in a short time and reinforcing that it is up to Congress to guide this process.
Source: Fecomercio
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