The Brazilian Supreme Court (“STF”) is currently deliberating on the constitutionality of Article 19 of the Brazilian Internet Bill of Rights (Law #12,965/2014), which establishes the civil liability regime of internet service providers (“ISPs”) for damages arising from user-generated content.

On December 5, Reporting-Justice Dias Toffoli voted to strike down Article 19, according to which ISPs may only be held civilly liable for user-generated content after non-compliance with a specific court order determining the removal of said content (judicial-takedown), with a few exemptions under the notice-and-takedown regime.

The STF has been deliberating on the constitutionality of Article 19 for years, with the trial formally beginning last week. This case is poised to become STF's most important ruling on internet services to date. The final decision, yet to be reached, could hold significant implications for ISPs and the boundaries of digital platforms liability in Brazil.

In his 165-page vote, Justice Dias Toffoli outlined his reasons for deeming Article 19 unconstitutional, highlighting the following points:

• Evolving internet realities: the current legal framework would inadequately address the speed and reach of digital harm, particularly given the dynamic nature of online interactions and the increasing prevalence of false information and offensive content.
• Imbalance in the protection of rights: Article 19, in his view, would disproportionately favor freedom of speech over other fundamental rights, such as privacy, honor, and image.
• Platform accountability: Justice Toffoli questioned the notion that judicial oversight alone should mediate conflicts involving liability for online content. Instead, he proposed a model where platforms bear a greater share of responsibility for managing harmful content.
• Judiciary overload: requiring judicial intervention for every content takedown would exacerbate delays in protecting victims and strain the Judiciary.

By striking down Article 19, Justice Toffoli proposes that:

• General rule (notice-and-takedown): ISPs would be held liable if they fail to act within a reasonable timeframe after being notified of harmful content by an affected party.
• Exemptions (strict liability): ISPs would be strictly liable, even without prior notification, for damages arising from third party content when:
  • They recommend, promote (paid or unpaid), or moderate such content;
  • The content involves inauthentic, unidentified, and/or automated accounts;
  • Copyright violations occur;
  • The content involves an enumerated list of high-harm situations, such as crimes against democracy; terrorism; inducing, inciting, or aiding suicide or self-harm; racism; violence against children, women, and vulnerable individuals; public health violations; human trafficking; sexual violence; and disinformation that incites violence or disrupts electoral integrity.

While Justice Toffoli's vote marks a decisive step in the trial, the final ruling depends on the majority consensus among the Court's 11 justices. The trial is set to resume next week, but it is unclear whether it will be concluded this year.

This decision has the potential to reshape Brazil's regulatory framework for digital platforms. ISPs operating in Brazil should monitor this case closely, as the invalidation of Article 19 may lead to obligations to proactively moderate content, under the penalty of being held civilly liable for any harm arising from them.

Our team is closely monitoring the trial, as well as other issues related to internet regulation in Brazil. For further information, please contact us at info@lickslegal.com.