Brazil Increasing the Liability of Social Media Platforms for Third-Party Misinformation By: Taylor Mikkelson
Brazil Increasing the Liability of Social Media Platforms for Third-Party Misinformation
On June 26, 2025, Brazil's Supreme Federal Court made a landmark decision that increases the liability of “internet application providers,” i.e. social media platforms, for certain third-party content.[1] In this 8-3 decision, the Court assessed Article 19 of the Brazilian Civil Rights Framework for the Internet (commonly referred to as MCI), and struck part of it down as unconstitutional.[2] Since MCI was signed into law in 2014, Article 19 had acted as a shield for social media platforms by guaranteeing that providers could only be liable for damages caused by third-party content on their site if the provider did not make efforts to remove that content after being given a judicial order to do so.[3] The legislature’s purpose behind creating limited liability for these providers was to protect the constitutional right to freedom of expression and prevent censorship.[4]
However, in recent years, the proliferation of misinformation has flourished on these online platforms, and big media platforms have not only failed to regulate this misinformation.[5] This lack of regulation can be seen as a direct result of the limited liability provision in Article 19 as it allowed companies to avoid accountability for the content it made available on its platform until a judge deemed it “illegal” and ordered them to take it down.[6] The Court took issue with this in its decision, arguing that Article 19 did not provide sufficient protection to constitutional “legal assets” such as democracy.[7] In order to protect these assets, the Court laid out a new framework for how liability for internet providers should operate in the wake of its decision.[8] Now, if a provider receives extrajudicial notification from an affected individual or that individual’s legal representative and it chooses not to act, it may be civilly liable if the court later deems the content to be “unlawful.”[9] It also established a duty of care standard for application providers to promptly remove content involving serious crimes including, “anti-democratic acts, terrorism, incitement to self-harm, hate crimes, gender-based violence, child sexual abuse, and human trafficking.”[10] In cases where there is a “systemic failure” of the provider to remove this content involving serious crimes, meaning the provider “lacked adequate preventative and remedial measures,” it will be strictly liable.[11]
This decision has big implications for large media application providers, such as Facebook and X, who now have to reconfigure their platforms to promptly react to content that would trigger their liability.[12] There is a concern that this decision could prompt large media companies to be overly cautious in preemptively taking down “on the line” content in order to stave off financial and legal ramifications.[13] It also opens the door for providers to independently determine what content they are going to take down and what content rises to the level of “illegal content” every time they receive extrajudicial notice for an allegedly affected individual.[14] Google and Meta, the parent company of Facebook and Instagram, have already released statements indicating that their companies may choose to monitor third-party content more conservatively going forward in order to avoid legal consequences.[15]
In the wake of the court’s ruling, there have also been renewed calls for additional legislation to be written to help define what types of content should be taken off internet application platforms and create procedures for what providers must do to meet this continually grey line of upholding freedom of speech, but protecting democracy and other freedoms.[16] The Court itself called for the legislature to amend the MCI and provide further clarification.[17] So far, there has been no new legislation introduced by Congress to address the Court's decision.[18] The legislature did have a bill introduced in 2020, nicknamed the “Fake News Bill,” which called for more transparency from internet application providers on how they moderate and share content, penalization mechanisms for creators and distributors of misinformation, and the creation of a “Council of Transparency” to enforce compliance with the new laws.[19] However, this bill was tabled in 2024 after it failed to garner the necessary votes for passage on multiple occasions.[20]
This decision could mark an important turning point not just in Brazil, but internationally, about how courts and legislators are going to regulate internet application providers. Through this decision, Brazil’s highest court indicated a shift from treating internet platform providers as neutral intermediaries to placing greater responsibility on them to monitor and remove harmful content from the internet.[21] However, giving those providers the responsibility to be “de facto” arbiters of speech raises legitimate concerns about potential over-censorship. While the future of internet application platform governance is still unclear, Brazil’s Supreme Court decision offers an interesting insight into potential pathways for how to balance our constitutional right to free speech and protect democratic values.
1 See, S.T.F.J., RE 1.037.396 (Temas), 26.06.2025, (Braz.), available at https://portal.stf.jus.br/processos/detalhe.asp?incidente=5160549
2 Debora Prado, Brazil explores ways to hold platforms accountable in court and beyond, ASSOCIATION FOR PROGRESSIVE COMMUNICATIONS (Sept. 2, 2025) https://www.apc.org/en/news/brazil-explores-ways-hold-platforms-accountable-court-and-beyond
3 Decreto No. 8.711, 24 de abril de 2014, Diário Oficial da Uni,ão [D.O.U.] 24 de Abril de 2014 (Braz.)
4 Gustavo Rodriguez & Paulo Rena, Constitutionality of Civil Rights Framework’s article 19: Intermediary Liability judicially reviewed by the Supreme Court of Brazil, Institute for Reseach on Internet and Society (June 21, 2022) https://irisbh.com.br/en/constitutionality-of-civil-rights-frameworks-article-19-intermediary-liability-judicially-reviewed-by-the-supreme-court-of-brazil/#:~:text=Article%2019%20of%20the%20Civil%20Rights%20Fra mework,Copyright%20*%20Exploitation%20of%20private%20intimate%20images
5 Prado, supra note 2.
6 Id.
7 Decreto No. 8.711, (Braz. 2014).
8 Prado, supra note 2.
9 Heloisa Massaro, From Shield to Scruitny: Brazil’s Supreme Court Redefines Platform Liability, Global Network Intiative (Nov. 3, 2025) https://globalnetworkinitiative.org/from-shield-to-scrutiny-brazils-supreme-court-redefines-platform-liability/
10 Id.; S.T.F.J,. RE 1.037.396 (Braz.).
11 Massaro, supra note 9.
12 Brazil’s Supreme Court Ruling may be headache for tech giants: Facebook-parent Meta, google react, Times of India (June 28, 2025)
13 Prado, supra note 2.
14 Id.
15 Brazil’s Supreme Court Ruling may be headache fortypes tech giants: Facebook-parent Meta, google react, supra note 12.
16 Prado, supra note 2.
17 Id.
18 Id.
19 Ana Silveira & Ana Camelo, Internet Impact Brief: Proposals to Regulate Digital Platforms In Brazil, Potential Impacts in the Internet, Internet Society (Feb. 19, 2025) https://www.internetsociety.org/resources/doc/2025/proposals-to-regulate-digital-platforms-in-brazil-potent ial-impacts-in-the-internet/#:~:text=In%20December%202024%2C%20discussions%20around,powers%2 0to%20exercise%20regulatory%20control.
20 Massaro, supra note 9.
21 Id.