1. The Era of Digital Constitutionalism
Digital Constitutionalism is understood to correspond, in an abstract way, to a theoretical current of contemporary Constitutional Law that is organized from common normative prescriptions for the recognition, affirmation and protection of fundamental rights in cyberspace (1).
It is a trend stemming from this latent need to protect individual freedoms, which are susceptible to violation by the various actors who operate in the virtual space.
The conceptual proposal of Digital Constitutionalism proves to be commendable, insofar as the private activity of virtual organizations demands regulatory prescriptions capable of ensuring rights and establishing limits.
This implies recognizing that classic rights, such as the dignity of the human person, freedom of expression, political participation, and the protection of honor, cannot be emptied of meaning in the face of the new demands of digital society.
At the same time, it becomes essential to give effect to emerging rights, such as internet access, net neutrality, and the protection of personal data, in order to harmonize them with the traditional catalog of constitutional guarantees.
Given the unique nature of social relations in the online environment, a robust body of regulations becomes crucial in the Brazilian context.
2. Virtual environment and rights
Widespread internet access has substantially altered the realization of freedom of expression through social media.
In this context, the popular participation enabled by the internet also stands out, as it has expanded the deliberative public space, strengthened the foundation of political pluralism foreseen in Article 1 of the Brazilian Federal Constitution of 88, and enhanced the exercise of rights, allowing for greater interaction between citizens and the State itself.
This has led to new challenges, no longer just related to access to information, but also to the content published by users, especially offensive and extremist discourse.
3. The problem of hate speech and extremist discourse
While the internet has boosted freedom of expression and expanded the space for political and social participation, it has also become fertile ground for the spread of so-called hate speech and extremist demonstrations.
Such conduct is not limited to individual offenses against honor, but takes on a collective and structural character, targeting vulnerable social groups based on race, religion, sexual orientation, gender identity, origin, or political position.
It should be noted that these criminal acts are not included within a scope of protection corresponding to the part of reality that the Constitution has actually decided to protect as a fundamental right.
On the contrary, these are transgressions that may give rise to civil and administrative liability, jointly or alternatively, with other normative texts that aim to curb discriminatory practices and protect the dignity of the human person, such as the Federal Constitution, Law No. 7.716/1989, the Penal Code, and even Law No. 11.340/2006.
Freedom of expression is curtailed when its content jeopardizes a democratic education, free from prejudiced hatred and founded on the intrinsic value of every human being. In a context that encourages violence and exploits vulnerable groups, including commercially, the constitutional guarantee tends to yield to the prima facie priority value, which takes into account justice, common sense and moderation (2).
For example, a law prohibiting the use of horns in front of hospitals is not intended to restrict freedom of expression or political demonstration. Its immediate purpose is to protect the peace, health, and regular functioning of medical establishments.
A law that prohibits the use of billboards in certain regions, in order to preserve the visibility of privileged areas for reasons of traffic safety or landscape value, will not immediately attract an interpretation of censure or unconstitutionality.
In these cases, a practical agreement is reached between conflicting values to ensure the legitimacy of the law, which has the collateral effect of interfering with the exercise of freedom of expression.
This is a reasonable administrative restriction aimed at protecting collective legal interests, such as traffic safety and environmental preservation, without preventing the message's content from being disseminated through other permitted means.
Hate speech is a practical example of this. By inciting hostility and violence, the sphere of mere expression of opinion and freedom of speech is overstepped to such an extent that it jeopardizes cherished constitutional values such as human dignity, equality, and democratic pluralism.
In this sense, unlike critical expressions that fall under this guarantee, extremist discourse digitizes intolerance, encourages discriminatory practices, and compromises democratic coexistence in the virtual public space, demanding proportionate and effective responses to contain its harmful effects.
5. Current legal and regulatory context
5.1 Understanding of the STF
The STF ruled that inciting racial discrimination, through antisemitic ideas, “which seek to rescue and give credibility to the racial conception defined by the Nazi regime, denying and subverting uncontroversial historical facts such as the Holocaust, embodied in the alleged inferiority and disqualification of the Jewish people”, constitutes a crime, and not conduct protected by freedom of expression, since the promotion of racism is not included in this. (3).
In one of its decisions, it reaffirmed the premise by condemning a religious leader for the crime of racism (art. 20, §2º, of Law nº 7.716/89) in a case of public hate speech against other religious denominations and their followers. (4)
In the fight against hate speech, it is also necessary to consider the inhibiting effect these practices have on the full participation of discriminated groups in various activities of civil society.
The repeated disqualification that hate speech provokes generates a corrosive effect on the authority of these victims in the discussions in which they participate, harming the democratic purpose that inspires freedom of expression (5).
In other words, it not only offends, but also undermines the promotion of a pluralistic and inclusive space, in which the participation of all citizens is effectively respected.
The abuse of freedom of expression falls outside the scope of protection guaranteed by the Constitution, and may attract repression and accountability, which is fully compatible with the democratic rule of law.
5.2 How does this theme develop in the digital context?
Guilherme Souza Nucci teaches that new paths, resulting from modern technology, create other vehicles for expressing an offense. (6)
It becomes relatively simple to identify the author of an offense conveyed through an email or a message sent from one person to another, given the targeted and restricted nature of the communication.
The problem, however, becomes more complex when the demonstration takes place on social media, due to the wide dissemination of messages, the possibility of successive sharing, and the difficulty in delimiting the reach of these discourses.
In these cases, it cannot be ruled out that hate crimes, extremist acts, and crimes against individual honor find fertile ground for the multiplication and perpetuation of their effects in the digital environment.
On sites like Facebook or Instagram, there is a false sense of freedom to speak openly about everything and everyone, sometimes using vulgar language and spreading false and degrading information.
However, it is perfectly possible for a crime to be committed in a post or any other similar virtual environment.
As highlighted in the article, " Freedom of Expression or Digital Responsibility? The Role of the Jurist on Social Media ," citizens are free to express themselves, but must be held accountable for any excesses committed, especially when they offend, misinform, or incite violence, regardless of the medium used.
5.3 But how are application providers held liable for content that constitutes a crime or illegal acts generated by third parties?
The Brazilian Internet Bill of Rights (Law No. 12.965/2014), which established principles, guarantees, and duties for internet use, is an essential tool in these cases involving digital liability.
Based on article 19 of the MCI (Brazilian Internet Law), the provider can only be held liable after a specific court order with a specific deadline that determines the removal of each piece of content identified.
In practice, this resulted in a series of situations that clearly demonstrated normative ineffectiveness, as a judicial process was required for each offensive piece of content, representing a slow and bureaucratic mechanism, given the rapid dissemination through sharing.
Article 21, in turn, establishes a different rule. The internet provider may be held liable if someone publishes a photo, video, or any intimate material on this platform without the authorization of the person involved. In this case, the platform has a duty to remove the content after receiving a simple extrajudicial notification, with subsidiary liability: first, the person who published it is held responsible, but the provider may also be held liable if it fails to act.
However, after the judgment of RE 1.057.258/MG (Topic 533) and RE 1.037.396/SP (Topic 987), both dated 06/27/2025, the STF declared the partial and progressive unconstitutionality of article 19 of the MCI, modulating its application.
It was decided that, in fact, there is a state of partial omission on the part of the legislature in issuing supplementary rules that could bring greater effectiveness to the rules aimed at protecting constitutionally guaranteed legal rights.
He acknowledged that the unconstitutionality is progressive in nature, insofar as it is up to the National Congress to fill the existing gaps in the law to address what actually happens in the problems involving the digital accountability of providers and fundamental rights.
Article 19 remains valid and applicable in the same way in relation to crimes against honor, although a court order is still required to hold the platform liable, as it involves situations of subjective evaluation that must be considered on a case-by-case basis. The court decided not to establish a duty for the provider to remove the content.
However, the interested party will no longer need to file a new lawsuit for each case. If there is already a decision declaring that content illegal, all platforms from the same provider or not will be required to remove identical versions of the same material, simply by extrajudicial or judicial notification, without the need for a new court order. (7)
A relevant development concerns the application of the rule in Article 21. The Supreme Federal Court (STF) has ruled that Article 21 of the MCI (Marco Civil da Internet) should also be applied to:
- any content that constitutes a crime or illegal act;
- Accounts reported as inauthentic (fake accounts) prone to criminal activity.
For example, a post containing racist or discriminatory content is reported by users to the social network. In this context, the mere notification or awareness by the platform that certain content is criminal and illegal entails the duty to take action and remove the post from its platform.
If the content is not removed, the company may be ordered to compensate the victims, just as it would be if it disobeyed a court order.
As Uadi Bulos teaches, the laws of the Marco Civil da Internet play a guiding role in resolving digital conflicts. (8)
The absence of its complementarity and effective regulation causes serious harm to fundamental rights and guarantees, and encourages the perpetuation of extremist discourses that masquerade as legitimate under the guise of freedom of expression. This practice has been a matter of concern for the Judiciary, which has already adopted several temporary emergency measures and actions to address it.
The growing public expression on digital networks, the need to contain hate speech and other crimes, and the harmful consequences of the absence of effective and promising regulation in this space are examples of how Digital Constitutionalism will continue to influence the lives and functioning of institutions in our time.
References
(1) MENDES, Gilmar Ferreira; FERNANDES, Victor Oliveira. Digital constitutionalism and constitutional jurisdiction: a research agenda for the Brazilian case. Revista Brasileira de Direito, Passo Fundo, v.16, n. 1, p. 1-33, jan./abr. 2020.
(2) Branco, Paulo Gustavo, G. and Gilmar Mendes. Course on Constitutional Law – IDP Series – 19th Edition 2024. Available at: Grupo GEN, (19th edition). Grupo GEN, 2024
(3) BRAZIL. Supreme Federal Court. HC 82.424/RS. Rapporteur for the judgment Justice Maurício Corrêa. DJ, Brasília, March 19, 2004
BRAZIL. Supreme Federal Court. RHC 146.303/SP. Rapporteur: Justice [exact rapporteur needs to be confirmed]. Official Gazette, Brasília, August 7, 2018.
(4) BRAZIL. Supreme Federal Court. First Panel. RHC 134.682/BA. Justice Edson Fachin, Rapporteur. Decided on November 29, 2016.
(5) Cf. Gilmar Ferreira Mendes et al., Constitutional Hermeneutics and Fundamental Rights, Brasília: Brasília Jurídica, 2002.
(6) NUCCI, Guilherme de Souza. Manual of Criminal Law vol. 3. 3rd ed. Rio de Janeiro: Forense, 2019.
(7) CAVALCANTE, Márcio André Lopes. Responsibility of internet application providers for damages arising from content generated by third parties. Dizer o Direito Search Engine, Manaus. Available at: https://buscadordizerodireito.com.br/jurisprudencia/13917/responsabilidade-dos-provedores-de-aplicacoes-de-internet-por-danos-decorrentes-de-conteudo-gerado-por-terceiros. Accessed on: 03/10/2025 – 16:27
(8) Bulos, Uadi L. Course of Constitutional Law – 17th Edition 2025. Available at: Grupo GEN, (17th edition). Grupo GEN, 2025.
BRAZIL. Law No. 7.716, of January 5, 1989. Defines crimes resulting from prejudice based on race or color. Official Gazette of the Union: section 1, Brasília, DF, January 6, 1989.
BRAZIL. Law No. 12.965, of April 23, 2014. Establishes principles, guarantees, rights and duties for the use of the Internet in Brazil. Official Gazette of the Union: section 1, Brasília, DF, April 24, 2014.
BRAZIL. [Constitution (1998)]. Constitution of the Federative Republic of Brazil of 1988. Brasília, DF: President of the Republic, [2016]. Available at: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Accessed on: September 10, 2024.
