With the growth of social networks, messaging applications, and digital platforms, new legal challenges have arisen regarding freedom of expression, content moderation, and liability for publications made by third parties and through the use of platforms managed by large companies. In this context, Law No. 12.965/2014, the Brazilian Internet Bill of Rights, enacted in 2014, became the main legal instrument to regulate internet use in Brazil, bringing important guidelines on rights, duties, and principles for the digital environment.
One of the most debated provisions of this legislation is Article 19, which deals with the liability of digital platforms (such as social networks and application providers) for user-generated content. This article establishes a rule of non-automatic liability, conditioning liability on the existence of a prior court decision ordering the removal of the content, as will be explored in more detail below.
What is the Brazilian Internet Bill of Rights?
The Brazilian Internet Bill of Rights, established by Law No. 12.965/2014, is considered the "legal statute of the internet" in Brazil. Its main objective is to establish the principles, guarantees, rights, and duties for internet use in the country, both by users and by companies and the public sector.
The Brazilian Civil Rights Framework for the Internet (Marco Civil) emerged at a time when discussions about internet governance were maturing, highlighting the need for legislation that would establish clear guidelines on privacy, net neutrality, data protection, and civil liability. Its development involved social and technical participation, serving as an example of legislation built on a democratic and multi-sectoral process.
Fundamental Principles and Innovations of the Brazilian Internet Bill of Rights
Article 3 of the Law lists the guiding principles of the internet in Brazil. Among the main ones, the following stand out:
- Guarantee of freedom of expression, communication and manifestation of thought;
- Protection of privacy and personal data;
- Net neutrality, which ensures equal treatment of all data packets; and
- Preserving the stability, security, and functionality of the network.
Furthermore, among the relevant innovations brought about by this legal instrument that deserve highlighting are: the establishment of rules for the storage and protection of user data; specific provisions regarding the civil liability of companies operating in the digital environment; and the recognition of the internet as an essential tool for the exercise of citizenship, with emphasis on the role of the Public Authorities.
In this context, Article 19 of the law represents one of the most relevant pillars of the legislation, as it addresses the balance between the responsibility of platforms and the freedom of expression of users, in addition to seeking to guarantee the prevention of private censorship.
What does Article 19 of the Brazilian Internet Bill of Rights say?
Article 19 of the Brazilian Internet Civil Rights Framework regulates the civil liability of internet application providers for damages arising from content generated by third parties. It establishes that the provider can only be held liable if, after a specific court order, it fails to take steps to remove the offensive content.
Article 19. In order to ensure freedom of expression and prevent censorship, internet application providers may only be held civilly liable for damages arising from content generated by third parties if, after a specific court order, they fail to take steps to make the content identified as infringing unavailable, within the scope and technical limits of their service and within the stipulated timeframe.
This rule establishes that digital platforms are only legally obligated to remove content when there is a court order, unless the content violates the platform's rules. In other words, platforms are not obligated to remove content automatically, except in legally exempted cases, such as child pornography, content related to crimes stipulated in the Statute of Children and Adolescents, and rules pre-established by the platform.
However, it should be noted that the device has not been immune to criticism, including recent criticism regarding its practical effects, with its constitutionality even being challenged by the Supreme Federal Court (STF) for allegedly "granting immunity to companies, which can only be held civilly liable if they fail to comply with a court order to remove content."
What are the practical effects of Article 19 for the platforms?
Article 19 has significant practical effects, both for users and for digital platforms and the Judiciary itself, establishing the roles of each of these actors in relation to problems related to third-party publications.
With regard to legal certainty for digital platforms, the rule introduced by Article 19 offers security by establishing an objective criterion for liability, thus avoiding the perception of biased private censorship and providing a degree of predictability in the relationships between users and providers.
Furthermore, for users, Article 19 protects freedom of expression. For many, this measure seeks to prevent platforms from acting as judges of what can or cannot be published, which could result in private censorship, undue silencing, and arbitrary actions.
As a consequence, the device has also generated an increase in the judicialization of digital conflicts. Often, victims of offensive or illegal publications need to resort to the Judiciary to obtain the removal of the content, which can make the process slower and more costly, especially in cases that require speed, such as in situations of hate speech or attacks on honor.
What are the criticisms and debates surrounding Article 19?
Article 19 is the subject of intense debate among experts, technology companies, legal professionals, and digital rights advocates. On one side, there are those who defend its maintenance as a safeguard against private censorship. On the other, there are those who argue that the current model is insufficient to protect victims of abusive or illegal content.
One of the main criticisms of Article 19 is the requirement for a court order to remove content, which can be ineffective in situations that demand a quick response, such as the dissemination of fake news, cyberbullying, the sharing of intimate images without consent, and incitement to violence or the commission of crimes. In these cases, the time between publication and judicial removal can be sufficient to cause serious and irreparable harm.
With the growing influence of digital platforms in public debate, especially during elections and health crises, the discussion about the need for more active regulation of content moderation is intensifying. This discussion is present in legislative projects such as the Fake News Bill (PL 2630/2020), which seeks to regulate transparency and accountability obligations for digital platforms in the fight against disinformation.
At the same time, it is important to highlight that this regulation needs to be carefully designed so as not to compromise freedom of expression and user autonomy. In other words, this is a debate in which the law, despite its regulatory role, cannot be an obstacle to progress and innovation.
The Superior Court of Justice (STJ) has already ruled, in specific cases, that Article 19 can be made more flexible, especially when the content clearly violates fundamental rights and remaining online causes immediate harm, as in cases of revenge porn. These decisions indicate that there is room for a more dynamic interpretation of the article, especially when there is evident illegality and an urgent need for protection.
Conclusion and Future Perspectives
The Brazilian Internet Bill of Rights, and especially Article 19, represents an important milestone in the defense of digital rights in Brazil. However, rapid technological evolution, the growing relevance of platforms in public debate, and the use of the internet for illicit practices require periodic revisions and updates to the legislation.
Some paths that have been discussed include: establishing extrajudicial procedures for removing illicit content in evident cases; creating transparency and accountability standards for platforms regarding moderation decisions; and promoting mechanisms for the rapid resolution of digital conflicts, without harming the fundamental rights of users.
This is a fundamental device for balancing the accountability of digital platforms with the guarantee of freedom of expression. By requiring a court order for liability for third-party content, it prevents private censorship and protects the democratic space of the internet. However, it also presents practical challenges, especially regarding the slow removal of clearly illegal content.
The debate regarding its potential revision should be conducted cautiously, taking into account the constitutional principles involved and the complexity of contemporary digital relationships. The future of digital regulation in Brazil will depend on the construction of balanced norms that protect both the freedom of users.
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.
BRASIL DE FATO. In a global UN forum, Lula's government defends the regulation of social networks. February 22, 2023. Available at: https://www.brasildefato.com.br/2023/02/22/em-forum-global-da-onu-governo-lula-defende-regulacao-de-redes-sociais/. Accessed on: April 13, 2025.
INSTITUTE OF TECHNOLOGY AND SOCIETY OF RIO DE JANEIRO. Civil Framework for the Internet: construction and application. 2016. Available at: https://itsrio.org/wp-content/uploads/2017/02/marco_civil_construcao_aplicacao.pdf. Accessed on: April 13, 2025.
JOTA. Ruling on Article 19 impacts commercial content, incitement to violence, and disinformation. Available at: https://www.jota.info/stf/do-supremo/julgamento-do-artigo-19-impacta-conteudo-comercial-incitacao-a-violencia-e-desinformacao. Accessed on: April 13, 2025.
JUSBRASIL. Article 19 of Law No. 12.965, of April 23, 2014. Available at: https://www.jusbrasil.com.br/topicos/27363750/artigo-19-da-lei-n-12965-de-23-de-abril-de-2014. Accessed on: April 13, 2025.
JUSBRASIL. The civil liability of internet providers for damages caused by third parties. Available at: https://www.jusbrasil.com.br/artigos/a-responsabilidade-civil-dos-provedores-de-internet-pelos-danos-causados-por-terceiros/2162088472. Accessed on: April 13, 2025.
Brazilian Federal Senate. The Brazilian Internet Bill of Rights turns ten years old amid challenges regarding social networks and AI. April 26, 2024. Available at: https://www12.senado.leg.br/noticias/materias/2024/04/26/marco-civil-da-internet-completa-dez-anos-ante-desafios-sobre-redes-sociais-e-ia. Accessed on: April 13, 2025.
SUPERIOR COURT OF JUSTICE. Provider does not need a court order to remove content contrary to its terms of use. November 11, 2024. Available at: https://www.stj.jus.br/sites/portalp/Paginas/Comunicacao/Noticias/2024/11112024-Provedor-nao-precisa-de-ordem-judicial-para-remover-conteudo-contrario-aos-seus-termos-de-uso-.aspx. Accessed on: April 13, 2025.
SUPREME FEDERAL COURT. Civil Framework for the Internet: rapporteur considers the requirement of a court order for content removal unconstitutional. 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/. Accessed on: April 13, 2025. SUPREME FEDERAL COURT. Civil Framework for the Internet: rapporteur defends changes in the liability regime for platforms. November 28, 2024. Available at: https://noticias.stf.jus.br/postsnoticias/marco-civil-da-internet-relator-defende-mudancas-no-regime-de-responsabilizacao-de-plataformas/. Accessed on: April 13, 2025. 2025.
