Brazil's Supreme Court Rules Digital Platforms Liable for User Content

The Supreme Court of Brazil has made a landmark ruling regarding the accountability of online platforms for content generated by their users. In a decisive vote held on Thursday, the court ruled 8 to 3 that social media platforms can now be held directly responsible for illegal content posted by their users. This ruling signifies a departure from the previous standard where platforms were only liable if they failed to comply with a court order to remove such content.

The court's ruling means that major technology companies, including Meta (which owns Facebook, Instagram, and WhatsApp), Google (which operates YouTube), and Microsoft (which manages LinkedIn), are now required to promptly remove content deemed illegal, such as hate speech, calls for violence, or actions against democracy, upon becoming aware of it or being notified. Failure to comply could result in significant penalties, including hefty fines or even temporary service suspensions.

The Supreme Court justified its decision by stating that the existing Article 19 of Brazil's Civil Framework for the Internet (Marco Civil da Internet) does not sufficiently safeguard fundamental rights and democracy. As a result, platforms now have a 'duty of care' concerning serious illegal content. The ruling also allows individual users to sue platforms if they report illegal content that is not removed in a timely manner.

This decision comes amidst increasing concerns in Brazil regarding the harmful effects of digital content, particularly on young people. Calls for stricter Internet regulations have intensified following the unrest in Brasília on January 8, 2023, when supporters of the far-right former president Jair Bolsonaro stormed government buildings and incited calls for a military coup.

The ruling is expected to ignite a global debate about the limits of free speech online. The Financial Times notes that it may also heighten tensions with the U.S. government, which has previously accused Brazil of censoring social media. In May, U.S. Secretary of State Marco Rubio indicated that Washington was considering sanctions against a Brazilian Supreme Court judge under the Magnitsky Act, aimed at foreign officials who engage in corruption or human rights abuses. This followed a previous incident where Judge Alexandre de Moraes temporarily blocked Elon Musk's platform X after the billionaire refused to comply with court orders regarding certain account suspensions.

Reactions to the ruling have been mixed. David Nemer, a media studies professor at the University of Virginia, described the decision as transformative, introducing a more responsive system for addressing issues such as racism and calls for violence, which are not protected under Brazilian free speech laws. He also noted that the court maintained important protections for free speech by keeping judicial oversight for cases involving defamation.

Conversely, some conservative voices in Brazil have expressed concerns that this ruling undermines free speech. Right-wing congressman Coronel Chrisóstomo stated that the official enactment of this decision would lead to censorship, urging Congress to respond.

Meta has expressed apprehension regarding the ruling's implications for free expression and the many businesses that rely on its platforms for growth and job creation in Brazil. The decision raises legal uncertainties and could hinder innovation in the digital economy. Reports suggest that Meta may consider scaling back or ceasing operations in Brazil, citing increased business risks. Google has echoed similar concerns.

In the European Union, the Digital Services Act (DSA) establishes a tiered liability system for platforms, wherein they are generally not liable for illegal user-generated content unless they have knowledge of it. Once notified, they are obligated to promptly remove or restrict access to such content. Large online platforms face additional responsibilities to proactively mitigate risks associated with the spread of illegal content. U.S. officials and social networks have raised similar censorship concerns, which the European Commission has rejected.