The Brazilian Internet Bill of Rights (Law 12.965/2014) was established to set forth principles, rights, and duties regarding internet use in Brazil, including the liability of internet service providers. Article 19 conditions the civil liability of these agents on the existence of a prior court order , functioning as a safeguard for freedom of expression.
This legal concept, however, has been the subject of intense judicial and academic debates, especially after ADI 6387 and RE 1.057.258 , which redefined the contours of the operation of digital platforms. Before exploring the impacts of these rulings, it is essential to understand the foundations and structures of the Civil Rights Framework for the Internet that underpin the topic.
What is the Brazilian Internet Bill of Rights?
The Brazilian Internet Bill of Rights (Marco Civil da Internet) is the Brazilian legislation that consolidates the rights and guarantees of users in the digital environment. Nicknamed the "Constitution of the Internet ," it was created to promote a safe, democratic space that respects user privacy.
Its main objectives include:
- Ensure continuous internet access;
- Protect personal data;
- To ensure equal treatment for online content;
- Regulate the activities of service providers.
These objectives unfold into three fundamental principles, as outlined in Article 3 of the law:
- Freedom of expressionIt guarantees the right to freedom of expression, prohibiting prior censorship and ensuring a plurality of voices in the digital environment.
- Privacy and data protection: requires the confidentiality of communications and personal data, except by court order.
- Net neutrality: imposes equal treatment for all data packets, regardless of content, origin, or destination.
With these pillars, the Civil Rights Framework for the Internet seeks to ensure that the internet remains an open, safe space guided by fundamental rights.
Internet service providers and application providers: what's the difference?
To regulate responsibilities in the digital environment, the Civil Rights Framework for the Internet distinguishes between two types of providers:
- Connection providersThese are the entities that provide access to the network (such as broadband and mobile phone operators). According to article 18, they cannot be held responsible for content generated by third parties.
- Application providersThese include services such as social networks, blogs, websites, and hosting platforms. According to article 19, only these can be held liable. if they fail to comply with a specific court order content removal, within the deadlines and technical limitations of the service.
This distinction is fundamental, as it seeks to balance freedom of expression with the protection of third-party rights , without turning providers into censors or judges of content.
Article 19 of the Brazilian Internet Bill of Rights: how does it work?
Article 19 defines a model of subsidiary liability for application providers. According to it, these platforms can only be held civilly liable if:
- There is specific court order identifying the content;
- Even after notification, the provider do not remove The material will be delivered on time and within the possible technical limitations.
This model prevents providers from being punished for content they are unaware of, reinforcing the importance of judicial action as a guarantor of conflicting rights.
What do critics and defenders of Article 19 say?
This provision establishes that the provider is not automatically held liable; a prior court order is required for it to act.
However, the structure of Article 19 is not without controversy. Debates revolve around two poles: (i) the protection of freedom of expression; and (ii) its effectiveness in combating illegal content.
Arguments in favour:
- Preserve freedom of expression.: prevents arbitrary removals by the platforms.
- It guarantees legal security.It defines clear criteria for action, with judicial backing.
- It provides predictability.Providers know exactly how to act, avoiding insecurities.
Counterarguments:
- Risk of impunityOffensive content may remain active for extended periods until a court order is issued.
- Judicial slownessFraud, fake news, and digital crimes spread rapidly, requiring swift responses.
- Inadequacy to the digital environmentThe "notice and take down" model would, for many, be more effective in the online context.
In light of these conflicts, Article 19 began to be interpreted more flexibly by the Supreme Federal Court , especially in the judgment of ADI 6387 , a topic we will address below.
ADI 6387 and the constitutional limits of article 19
Direct Action of Unconstitutionality 6387 was filed by the PTB in 2020 against Provisional Measure 954/2020, which deals with the sharing of personal data by telecommunications companies with the IBGE (Brazilian Institute of Geography and Statistics). Although the Provisional Measure was the focus, the debate broadened to include the effects of Article 19 of the MCI (Marco Civil da Internet - Brazilian Internet Bill of Rights) on the fundamental rights to privacy and dignity.
In the Direct Action of Unconstitutionality (ADI), it was argued that the current model of Article 19 grants excessive immunity to providers, allowing harmful content to remain online for extended periods. The Attorney General's Office (AGU) defended the current model as essential to guarantee legal certainty. The Prosecutor General's Office (PGR), in turn, proposed an intermediate position, acknowledging the need to revise the provision without compromising fundamental rights.
Supreme Court decision
The Supreme Court ruled the action partially admissible , imposing a duty of enhanced care on the providers . It was decided that:
- A court order remains the rule for removals that require individualized analysis;
- For contents manifestly and flagrantly illegal, no new court order is necessary, and it is up to the providers to proactively remove them.
Thus, the Supreme Federal Court (STF) delimited the scope of Article 19, without invalidating it, and determined greater responsibility for platforms in the most evident cases of rights violations.
Topic 533 of the STF – RE 1.057.258: when can removal be immediate?
Another important ruling was that of Extraordinary Appeal 1.057.258 , of general repercussion (Theme 533), involving Google. Although the facts occurred before the Civil Rights Framework for the Internet came into effect, the Supreme Federal Court applied its principles by analogy, especially article 19.
The core of the debate was: is it possible to hold a service provider liable for offensive content before a court order? The Supreme Court's answer was yes, in specific cases.
The Court understood that:
- Article 19 remains validbut this can be relativized when the content is manifestly and seriously offensive;
- For these cases, the provider must act even without a court order.especially if there is widespread dissemination or promotion;
- The general rule remains the requirement for a court decision, but with well-defined exceptions.
This binding ruling expands the responsibility of platforms and anticipates what may come with potential new legislation.
The future of civil liability for providers in Brazil
The decisions in ADI 6387 and RE 1.057.258 inaugurate a new phase in digital responsibility. By recognizing exceptions to Article 19, the Supreme Federal Court strengthens the preventive action of platforms, without neglecting the importance of judicial protection.
In this context, the Fake News Bill (PL 2630/2020) advances with stricter proposals, requiring active moderation policies, transparency in algorithms, and greater accountability of platforms regarding disinformation and hate speech.
These changes indicate that:
- Companies will need to invest more in compliance and confidentiality digital and content governance;
- Litigation is likely to increase., with an increase in removal requests and lawsuits for damages;
- New administrative mechanisms may emerge., to alleviate the overburdened judiciary.
The closing thought
The civil liability of internet service providers in Brazil is going through a transitional phase, in which freedom of expression and the fight against disinformation clash in a complex legal landscape. Article 19 of the Marco Civil (Brazilian Internet Bill of Rights) remains the normative basis, but its interpretations are evolving in response to the demands of a hyper-connected society.
For legal professionals, especially those working in Digital Law, Data Protection, and Civil Liability , keeping up with these changes is essential. The current situation demands technical updating, strategic vision, and an understanding of the ongoing regulatory impacts.
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References
BRAZIL. Law No. 12.965, of April 23, 2014. Marco Civil da Internet (Brazilian Internet Bill of Rights). Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2014/lei/l12965.htm. Accessed on: April 13, 2025.
BORGES, Beatriz. Understanding Article 19 of the Brazilian Internet Bill of Rights. IDP Blog. Brasília, May 5, 2025. Available at: https://pos.idp.edu.br/idp-learning/blog/direito-digital/marco-civil-da-internet/.
Brazilian Chamber of Deputies. Will this be the end of the Brazilian Internet Bill of Rights as we know it? Chamber of Deputies – Radio. Brasília, June 17, 2025. Available at: https://www.camara.leg.br/radio/programas/1170689-sera-o-fim-do-marco-civil-da-internet-como-o-conhecemos/.
ROCHA FERREIRA, A. Treatment of personal data in criminal investigations: the fundamental right to informational self-determination as a constitutional limit. Brazilian Journal of Criminal Sciences , São Paulo, v. 185, n. 185, 2024. Available at: https://publicacoes.ibccrim.org.br/index.php/RBCCRIM/article/view/1701.
SUPREME FEDERAL COURT (STF). STF defines parameters for holding platforms liable for third-party content. STF News, Brasília, June 26, 2025. Available at: https://noticias.stf.jus.br/postsnoticias/stf-define-parametros-para-responsabilizacao-de-plataformas-por-conteudos-de-terceiros/.
SUPREME FEDERAL COURT (STF). Civil Framework for the Internet: rapporteur considers the requirement of a court order for content removal unconstitutional. STF News, Brasília, December 4, 2024. Available at: https://noticias.stf.jus.br/postsnoticias/marco-civil-da-internet-relator-considera-inconstitucional-exigencia-de-ordem-judicial-para-retirada-de-conteudo/.
SUPREME FEDERAL COURT (STF). STF suspends judgment on rules of the Brazilian Internet Bill of Rights regarding platform liability. STF News, Brasília, June 5, 2025. Available at: https://noticias.stf.jus.br/postsnoticias/stf-suspende-julgamento-de-regras-do-marco-civil-da-internet-sobre-responsabilidade-de-plataformas/.
