The Brazilian Supreme Court functions as both diffuse and concentrated control of constitutionality, and, pertinent to this case, resolves issues of constitutionality by classifying controversies in so-called “themes” (through the “repercussão geral”, or “general repercussion”, mechanism).
Federal Law no. 12.965 (Marco Civil da Internet, or “Brazilian Civil Rights Framework for the Internet”, as is frequently translated) since 2014 addresses the liability of Internet Service Providers. According to its Art. 19, Internet Application Providers are only liable for the user-generated content, by third parties, after “specific judicial order” (expressly excluding copyright from its scope, stating that their treatment depends on specific statutory regulation). The need for a court order creates a stricter effect than most safe harbor notice-and-takedown provisions.
In 2017 the Court received an appeal, which became Theme 533, and was entitled “duty of a website hosting company to monitor published content and remove it when deemed offensive, without judicial intervention”. Also in 2017 the Court received a similar appeal, which became Theme 987, entitled “discussion regarding the constitutionality of Article 19 of Law No. 12.965/2014 (the Brazilian Internet Civil Rights Framework), which mandates a prior and specific court order for content removal as a prerequisite for holding internet service providers, websites, and social media application operators civilly liable for damages arising from illicit acts committed by third parties”.
After their joint judgment, on 17 June 2026 a new constitutional interpretation of Article 19 of the Law, regarding the general liability rules for Internet Application Providers. Although the statutory text was not formally amended, the Court held that Article 19 is “partially and progressively unconstitutional” insofar as its general rule, as it was found to provide insufficient protection to fundamental rights and democracy.
Under the new thesis, Article 19 no longer functions as the general liability shield for application providers hosting third-party content. Until new legislation is enacted, providers may be held liable under an expanded notice-and-takedown system. In its new form, Art. 19 functions more like the more specific rules for Internet Application Providers, under Art 21 of the Marco Civil (in this case, for the specific case of damages caused by third-party content involving crimes or unlawful acts when they fail to remove the content after notice, unless they demonstrate reasonable doubt as to the unlawfulness after diligent review). The same rule applies to accounts reported as non-authentic.
The Court preserved the Article 19 judicial-order model for specific categories: crimes or civil wrongs against honor, without prejudice to voluntary removal after extrajudicial notice; interpersonal e-mail communications; closed video or voice meetings; private instant messaging, as to protected interpersonal communications; and other application providers that do not interfere with the communicative or informational flow.
The decision also creates a rebuttable presumption of fault for unlawful content distributed through paid advertisements, paid boosting, or artificial mechanisms of inorganic dissemination. In these cases, liability may arise even without prior notice, although the provider may avoid liability by proving diligent and timely action to make the content unavailable.
For mass circulation of a taxative list of serious unlawful content (including antidemocratic acts, terrorism, inducement to suicide or self-harm, discriminatory incitement, violence against women, sexual crimes against vulnerable persons, child sexual abuse material, serious crimes against children and adolescents, and human trafficking) liability is linked to systemic failure. A single isolated item of unlawful content is not, by itself, sufficient to trigger this systemic-liability regime.
The Court further held that marketplaces are liable under Brazilian consumer law, and imposed structural duties on Application Providers, including notice systems, due process mechanisms, annual transparency reports concerning extrajudicial notices, advertisements and paid boosting, accessible user and non-user complaint channels, periodic publication and review of moderation rules, and the maintenance of a Brazilian legal representative with authority to respond before administrative and judicial bodies.
The Supreme Federal Court expressly stated that the thesis does not establish strict liability. The decision has ex nunc effects from the publication of the original judgment minutes on 5 August 2025, subject to exceptions for continuing or permanent acts and final judgments. Providers have 60 days from publication of the minutes of the clarification judgment to implement the structural obligations relating to the duty of care for mass circulation of serious unlawful content.
A legislative rewriting of Art. 19 of Marco Civil is to be expected, under the guidance of the Themes’ joint decision.