On June 17, the Brazilian Supreme Court (STF) concluded the trial on the constitutionality of Article 19 of the Brazilian Internet Act (Law #12,965/2014 - MCI), which reshaped the civil liability regime of Online Service Providers (OSPs) for content generated by third-parties in Brazil.
Article 19 of the Brazilian Internet Act originally established that OSPs could only be held liable for damages arising from third-party content after failing to comply with a specific court order mandating its removal (judicial-takedown). In June 2025, the STF declared the Article partially unconstitutional, issuing a binding precedent that restructured the civil liability regime and imposed several regulatory requirements on providers operating in Brazil. For more information, please refer to our client alert issued at the time.
This ruling was subject to nine motions for clarification, all of which have now been adjudicated. The judgment preserved the core structure of the decision declaring Article 19 partially unconstitutional, while introducing some changes to the original wording of the ruling. The main changes are summarized below:
- Change to the notice-and-takedown regime: the ruling was amended to provide that, under the notice-and-takedown regime set forth in Article 21 of the MCI, providers are jointly liable for damages arising from the content together with the user who generated it, whereas the original statutory provision provided for subsidiary liability. In addition, the ruling introduces an exception under which providers are exempt from liability for notified content where, following a diligent review, there is a reasonable doubt as to its illegality.
- Expansion of cases subject to judicial-takedown: in addition to e-mail service providers, private video or voice conferencing services, and instant messaging providers mentioned in the original version of the ruling, the revised version now provides that “providers that do not interfere with the informational communicative flow” are also subject to the judicial-takedown regime set forth in Article 19 of the MCI.
- Appeal to the Legislative and Executive branches: the original ruling included a call for the Legislative Branch to pass a new legislation on the matter, and the revised version extends this appeal to the Executive Branch. Last month, the Federal Government issued Decree #12,975/2026, which codified part of the content of the ruling as it stood at the time. This initiative faced criticism on the grounds that regulation should be enacted by the Legislative Branch through legislation rather than by the Executive Branch through a decree. The inclusion of the Executive Branch in the revised ruling appears intended to validate the Federal Government's actions and mitigate potential challenges to the formal constitutionality of the decree.
In light of these changes, the liability regime applicable to OSPs in respect of damages arising from third-party content is structured as follows:
| Regime | Applicable to |
|---|---|
| Notice-and-takedown (general rule) Providers will be jointly liable if they fail to remove infringing content after receiving a notice mandating its removal (Article 21, MCI) |
Content relating to crimes or unlawful acts in general |
| Inauthentic accounts | |
| Judicial-takedown Providers will only be liable upon failure to comply with a specific court order mandating the removal of infringing content (Article 19, MCI) |
Content involving unlawful acts or crimes against honor |
| E-mail service providers | |
| Private video or voice conferencing providers | |
| Instant messaging service providers | |
| Providers that do not interfere with the informational communicative flow | |
| Strict Liability Providers will be liable regardless of fault (Article 14, Brazilian Consumer Protection Code) |
Marketplaces |
| Liability for systemic failure – Duty of Care Providers are under a duty to remove content involving serious crimes. Failure to implement adequate measures shall constitute a systemic failure and shall subject providers to liability for damages arising from such content. This regime is based on a duty of care aimed at preventing the widespread dissemination of illegal content. The isolated presence of illegal content is not sufficient to trigger liability under this regime; in such cases, the notice-and-takedown regime applies. |
Content involving serious crimes1 |
| Presumption of fault Fault is one of the elements for establishing subjective civil liability. Under this regime, fault is presumed, and liability will depend solely on proof of the remaining elements of civil liability (unlawful act, damage, and causal link) |
Paid advertisements and boosted content |
| Artificial mechanisms for inorganic dissemination of unlawful content |
The decision is final and no longer subject to appeal and produces ex nunc effect as of the date of publication of the minutes of the initial judgment, on August 5, 2025 (prior to the motions for clarification), meaning that the rules set forth in the ruling have been in force since that date. However, the ruling grants providers a 60-day period, running from the publication of the minutes of this judgment (which has not yet occurred), for providers to implement their duty of care obligations. It should be noted, however, that the duty of care is also set out in Decree #12,975/2026, which will enter into force on July 20, that is, before the deadline granted by the STF.
Footnote
1 For the effect of the ruling, the following are considered a serious crime: (a) anti-democratic conducts and acts aiming at the violent abolition of the Democratic Rule of Law or disruption or the electoral process; (b) terrorism or preparatory crimes for terrorism; (c) incitement, instigation, or assistance to suicide or self-mutilation; (d) incitement to discrimination on the basis of race, color, ethnicity, religion, national origin, sexuality, or gender identity, as well as homophobic and transphobic conduct; (e) crimes committed against women because of their sex, including content that propagates hatred of women; (f) sexual crimes against vulnerable people, child pornography, and serious crimes against children and adolescents; and (g) human trafficking.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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