Brazil's Supreme Court: Digital platforms are liable for user contributions

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The Brazilian Supreme Court has made a drastic decision on the liability of online platforms for user content. The Supremo Tribunal Federal (STF) ruled on Thursday with a majority of 8 to 3 votes of the participating judges that social media platforms can be held directly liable for illegal content posted by their users in future. A prior court order for the deletion of such posts is therefore not required. This represents a departure from previous practice. According to this, digital platforms were only liable if they did not comply with a court order to remove content.

In concrete terms, the ruling by the highest court, which cannot be appealed, means that large tech companies such as Meta with Facebook, Instagram, WhatsApp, Google with YouTube and Microsoft with LinkedIn or Elon Musk's social platform X will be obliged to immediately remove content such as hate comments, incitement to violence or "anti-democratic acts" in future. The only requirement for this is that they become aware of it or are notified of it. Failure to comply could result in severe sanctions, including heavy fines or even the temporary blocking of a service.

The STF, which also acts as a constitutional court, justified its decision by stating that the previous Article 19 of the Brazilian Civil Society Framework Agreement for the Internet (Marco Civil da Internet) was not sufficient to protect fundamental rights and democracy. The platforms now have a "duty of care" with regard to serious illegal content. The court also paved the way for individual users to sue platforms if they draw the companies' attention to illegal content that they subsequently fail to delete promptly.

Great concern about the consequences of social media

The decision was made in a climate of growing concern in Brazil about harmful digital content. Its impact on young people in particular is being criticized in the country. Calls for stricter internet regulation were made after the riots in Brasília on January 8, 2023, when supporters of far-right ex-president Jair Bolsonaro stormed government buildings and called for a military coup.

The ruling is now likely to fuel the global debate about the limits of freedom of expression on the internet, writes the Financial Times (FT). It also carries the risk of exacerbating tensions with the US government under President Donald Trump. The latter has already threatened to impose visa restrictions on foreigners, which would restrict the freedom of expression of US companies and citizens.

In May, US Secretary of State Marco Rubio announced that Washington was considering sanctions against a judge of the Brazilian Supreme Court on the basis of the Magnitsky Act. This law is aimed at foreign officials who are guilty of corruption or human rights violations. Last year, Brazilian judge Alexandre de Moraes temporarily blocked Elon Musk's social media platform X altogether after the tech billionaire refused to comply with court orders to block certain accounts.

Mixed reactions to the judge's ruling

David Nemer, Professor of Media Studies at the University of Virginia, described the ruling to the FT as groundbreaking. It introduces a "more responsive system", especially for cases such as racism and incitement to violence, which are not protected by Brazilian freedom of expression laws. At the same time, the court has preserved important protections for freedom of expression "by maintaining judicial oversight in cases of honor crimes such as defamation".

But there are also other voices. Conservatives in the South American state emphasized that the decision, which will come into force with the official publication, will undermine freedom of speech. "Congress will have to react," right-wing MP Coronel Chrisóstomo told local broadcaster Jovem Pan. "We cannot allow censorship."

Liability privilege in the EU after the DSA

Meta was "concerned about the impact of the ruling on freedom of expression and the millions of companies that depend on our apps for growth and job creation in Brazil". The decision will lead to legal uncertainty and will also slow down innovation and the development of the digital economy. The company is apparently considering discontinuing services in the country: "This significantly increases the risk for business activities in Brazil." Google once again expressed similar concerns.

In the EU, the Digital Services Act (DSA) provides for a tiered liability system with privileges for platforms: In principle, they are not liable for their users' illegal content as long as they have no knowledge of it and merely transmit or store the content. However, as soon as they are notified of illegal content, for example, they must remove it immediately or block access to it. Very large online platforms are also subject to extended due diligence obligations to minimize risks in order to proactively prevent the dissemination of illegal content or social harm. The US government and social networks are also complaining about censorship here, which the EU Commission has rejected.

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