Brazil Has a Bridge to Defending the Internet

James Görgen has been a Specialist in Public Policy and Government Management since 2009 working as an advisor at the Ministry of Development, Industry, Foreign Trade and Services (MDIC) of Brazil and a member of the Brazilian Internet Steering Committee (CGI.br).

Last month, Brazil’s Federal Supreme Court (STF) approved a landmark legal precedent, declaring Article 19 of the Marco Civil da Internet (MCI) progressively and partially unconstitutional. The article, part of the cornerstone law governing the use of the Internet in Brazil, had stipulated that an Internet application provider could only be held legally responsible if it failed to remove content from its platform following a judicial order.

The court’s actions follow a volatile period in Brazilian politics, during which a far right movement sought to overturn the result of a presidential election that saw the defeat of Jair Bolsonaro, who is now on trial over his role in an attempted coup d'état. Given the potential implications for how Brazil engages in platform regulation and determines civil liability for online speech, this trial put a Sword of Damocles over the head of the Brazilian far right, which used the lack of civil liability of digital platforms to aggressively distribute disinformation on the Internet.

The decision has also reverberated far beyond São Paulo. Perhaps former President Bolsonaro’s most powerful ally, United States President Donald Trump is now attempting to use trade policy to intervene in the trial, and in Brazilian digital policy, part of a campaign underway since before he started his second term in office. On July 9, Trump sent a letter to President Luiz Inácio Lula da Silva raising tariffs on Brazilian products exported to the US to 50%. Trump also directed his trade representative to open a Section 301 investigation, accusing Brazil of adopting measures that jeopardize the unbridled operation of US tech platforms within Brazil.

Trump’s intervention is a clear attempt to protect far right interests in Brazil and around the world, exposing the degree to which “free speech” arguments have been co-opted by the far right to preserve the ability to mislead and incite violence.

Dubious libertarianism

Enacted in 2014, the MCI law set forth principles and—somewhat shallow—duties for these companies' online activities. Article 19, in particular, echoed the much-debated Section 230 of a 1996 United States law—the Communications Decency Act (CDA)—which shielded Internet firms from civil and criminal liability concerning most user-generated content found on social networks and other web platforms. The MCI, passed nearly 20 years after the CDA, was even more liberal in granting this safe harbor that has persisted for over a decade. The only two exceptions, outlined in Article 21, pertain to revenge pornography or sexual content involving minors, and to material protected by copyright and related rights. If a platform fails to remove such content after an extrajudicial notice, it becomes legally liable.

What came next was an escalation of hate speech, glorification of coups, Nazism, terrorism, and adolescents’ mental-health crises, among other harmful discourses, being broadcast across online platforms. Big Tech firms, the guardians of these digital spaces, invoke freedom of expression as an absolute value to deflect public scrutiny. Academic studies have shown that a laissez-faire approach to the Internet created the perfect breeding ground for the rise of extreme-right movements worldwide.

In the wake of the various demonstrable harms to society and democracy over the last few years, governments around the world have sought to introduce more liability for online platforms. The European Union enacted the Digital Services Act (DSA) three years ago, holding companies accountable for the dangers posed by their business models. The United Kingdom, Australia, and various other Western democracies have followed suit. The US is an outlier, where commitments to free speech absolutism and the power of the tech industry have combined to frustrate attempts at significant reform.

However, Brazil’s constitutional tradition does not rest on the First Amendment of the US Constitution and does not elevate freedom of expression above all other rights. Articles 5 and 220 of the Brazilian Constitution weigh this value against the protection of individual and collective rights. Obviously, freedom of expression is constitutionally protected in Brazil and any regulation needs to be careful when dealing with the issue so as not to overstep the mark and flirt with censorship initiatives. There is a risk that fiddling with intermediary liability rules could lead to problematic new government power over digital platforms and online expression, but the STF’s rulings have initiated a significant experiment to shape the future of digital platforms regulation and their civil liability.

Temporary relief

The STF’s decision opens a legislative window for a country that has failed repeatedly to pass a regulatory framework governing technology firms. Multiple attempts, at least since 2020, have been thwarted by big tech lobbying engineered to shelve any proposals that seek to curb the current laissez-faire path.

What does the decision say? Here is a concise summary of the justices’ rulings, which redefine Brazilian judicial norms in disputes involving Internet-related crimes:

• The STF recognized the partial and progressive unconstitutionality of Article 19 of the MCI, on the grounds that the general rule fails to adequately protect fundamental rights and democracy.
• Internet application providers may be held civilly liable for harm caused by third-party illicit content, including from inauthentic accounts, irrespective of their removal duties.
• In defamation or similar offences, Article 19 applies, but removal via out-of-court notice is permitted; and platforms must remove repeat offensive content, once judicially identified, following either judicial or extrajudicial notification without further rulings.
• Providers are presumed liable for illicit content propagated via paid advertisements or artificial distribution networks (bots/chatbots), and can be held accountable even without notice unless they can prove diligent and timely removal efforts.
• Providers have a duty of care and may face civil liability if they fail to promptly remove mass content constituting serious crimes—such as anti-democratic acts, terrorism, suicide incitement, discrimination, crimes against women and children, human trafficking—indicative of systemic failure.
• Article 19 remains applicable to email services, private video/voice conferencing and instant messaging, but only concerning constitutionally protected interpersonal communications. Marketplaces are governed by the Consumer Protection Code.
• Providers must establish self-regulation standards, including notification systems, due-process procedures, annual transparency reports, accessible service channels and clear information on legal representation in Brazil.
• Liability is not strict; it is subjective, contingent upon conduct and diligence.
• The STF urged Congress to draft legislation addressing the current regime’s shortcomings in safeguarding fundamental rights.
• The decision’s effects are prospective, preserving legal certainty and not affecting finalized court rulings.

Unlikely support

Brazil has repeatedly attempted—so far unsuccessfully—to establish similar safeguards to stop the damage unleashed by the unconstitutional 2014 rule. Since 2020, several bills generated heated debate in Congress, only to be shelved. These were systematically obstructed by extreme-right and right-wing parties, aided by foreign corporations that launched misinformation campaigns against regulatory proposals. A familiar pattern emerges, and an ironic twist: some progressive thinkers and parts of the mainstream media, in insisting on defending Article 19 as the cornerstone of Brazilian Internet freedom, effectively paved the way for today’s extreme-right parties and foreign conglomerates to exploit the same shield.

The central argument of ostensibly progressive discourse hinges on a liberal narrative dating back to the early days of the web, which places left-wing politicians, mainstream media, civil society groups and academia on the same ideological footing as Big Tech firms. The insistence on judicial notice before content removal remains even when critics accuse these defenders of elitism—arguing that civil disputes could be resolved extrajudicially. This persists despite the majority of Brazilians lacking the resources to challenge transnationals or private individuals in court.

Perverse outcome

Contrast that with 2013: reactionary movements were then relatively restrained in defending the law, reducing the embarrassment for parts of the Brazilian left, which at that time mainly aimed to counterbalance telecom operators and defend net neutrality. Tech companies and certain NGOs jointly signed public manifestos and lobbied President Dilma Rousseff, ministers, representatives and public opinion. The proposals gained traction in Congress just months after US intelligence leaks—revealed by Edward Snowden in 2013—disclosed surveillance of Brazilian authorities and firms, facilitated by Big Tech firms. Some political figures instrumental in passing the MCI now operate in foreign-funded entities to advocate against regulation.

In short, instead of generating legislation that would genuinely hold transnational firms to account, the scandal fueled a series of initiatives that merely ensured the safe-harbor persisted. The lobbying was so effective that Rousseff signed the law during an event organized by the Committee for the Protection of the Brazilian Internet, alongside the body administering global Internet assets—then overseen by the US Department of Commerce. At the time, well-meaning individuals believed such a move was crucial to prevent platform overreach. In hindsight, the Obama administration’s strategy was entirely different.

The serpent’s egg

The 2014 legislative groundwork furnished the legal basis for the extreme-right’s digital hegemony, which many democracies now profoundly regret. As witnessed in various political uprisings after the initial optimism of the Arab spring period, social media has facilitated dangerous and sometimes criminal discourse under the guise that any intervention equated to censorship. What was conveniently ignored was that platforms already possessed mechanisms to remove content infringing copyright and related rights—and they profited from doing so, thanks to MCI’s exceptions.

Last year, this libertarian framework hampered the STF’s efforts to penalize platforms that broke Brazilian law by refusing to block accounts inciting an attempted coup. In other words, even with judicial notice, these companies felt free to harbor dangerous accounts online. Trump’s actions, following a similarly unconstitutional path of social-media liberalization, further bolster the global momentum in this domain.

Tragically, even the argument concerning the detrimental effects of harmful online content on children and adolescents fails to sway defenders of Article 19. Despite Brazil’s constitutional speech protections diverging from the US First Amendment, the US-anchored Internet governance model still seems to override protections for children, or to adequately address other harms, such as climate denialism and racist or homophobic attacks. Worse still, in the absence of public regulation, platforms leave such content online because it is the most profitable—fostering maximum engagement.

Fragile principles

Entrenched in the principles of free speech absolutism defended in the US, many of the same actors now resist government or STF intervention, fearing where maintained digital laissez-faire may lead. Their current position: companies should only be held liable if new legislation updates Law 12.965/14 (MCI), establishing comprehensive governance of digital platforms in Brazil. To them, Article 19 is constitutional. Convinced by such reasoning, social movements and the government are drafting bills to introduce constraints to offset these “behavioral deviations.”

Regrettably, I must say that such legislative efforts will likely fall short in the short term. With business models firmly entrenched due to this legal void and 15 years of lobbying in Parliament, Big Tech are comfortable. They only need to resurrect the same freedom of speech rhetoric from 11 years ago—already accepted by much of the public—to muster enough allies to bury reform efforts once more. To ensure no obstacles arise, some Big Tech firms have even gone further—twice contributing to the “digital literacy” of far-right politicians and activists through their AI and social-media tools in seminars organized by a political party.

Elections ahead

All of this is unfolding roughly a year before what promises to be one of Brazil’s most tumultuous election cycles, fueled by turbo-charged digital militias. It seems clear that both sides of this alliance intend to block any new legislation that could curb the rampant spread of disinformation and opinion crimes during next year’s election. That includes the AI Bill currently progressing slowly through the Brazilian House of Representatives, with its deepfake constraints. Yet not a single public petition condemning this alliance has emerged so far.

The good news is that the STF’s ruling has fostered a favorable environment within the Superior Electoral Court (TSE), Brazil’s electoral authority, whose decisions carry the force of law during election periods. This recent decision will be pivotal in the 2026 elections, as there remains a legal vacuum in platform regulation that will persist through the duration of the campaign. Firstly, the general-precedent doctrine compels companies to monitor the mass dissemination of content linked to specific crimes, attacks on democracy and the rule of law, and imposes due-care duties concerning illicitly promoted content. Secondly, the ruling presumes liability in cases of illicit content distributed via paid ads or by chatbots and bots. Thirdly, it leaves an important opening for aligning rules with electoral legislation.

As unorthodox as it may be, the reasoning adopted by some STF justices—and supported by the Attorney-General’s Office (AGU), which is part of the Federal Executive—seeks a pragmatic alternative. Their intention is to bring reason into the chaos wrought by an unconstitutional provision that survives on principled blackmail. It seems sensible that this ruling will result in a temporary transitional regime for Article 19. New terms must fill the vacuum of a law that is, one might say, unravelling due to the roles big techs now play in contemporary affairs and the constant business-model shifts they enact. And now, Brazil also needs to equalize Trump’s tariff threat. Basically, what the US president and his Brazilian allies appear to want is for no legislation containing Big Tech firms to be valid in an election year.

Until Parliament genuinely steps up with something to replace the obsolete Article 19—which won’t happen before the election—some voices must speak out against this dangerously entrenched digital alliance. Free expression is worth defending—but not the narrow, self-serving version of it advanced by the far right and Big Tech firms. History has often shown us that silence or complicity can be lethal for democracy.