A consequential decision by Brazil's Supreme Court has led to more legal powers available in the country to prevent the risks associated with the internet, new analysis shows.
There is now a greater focus on preventing harm in the nation - one of the world's largest internet user bases – rather than reacting to issues, the study says.
The Supremo Tribunal Federal or STF, has ruled that internet platforms can be held liable, amongst other circumstances, if they fail in their duty of care and allow gravely illegal content to circulate at scale.
A new model of liability, with rules varying depending on the type of content and the level of control platforms have over it, will complement the former conditional civil liability regime enforced by the courts.
The study, co-authored by Dr Beatriz Kira from the University of Exeter Law School, tracks the emergence of this new hybrid model, which combines judicial standards with administrative oversight and regulatory supervision. This will fundamentally change what content moderation systems internet platforms need to have in place to comply with Brazilian law.
Dr Kira shows how this hybrid model still requires legislation, above all to empower an independent regulator. Without it, inconsistent lower court rulings threaten legal certainty and fundamental rights.
The Supreme Court decision, made in October last year, declared Article 19 of the Marco Civil da Internet partially unconstitutional, fundamentally restructuring the country's intermediary liability regime. It followed years of inaction by the Congress, where previous efforts to reform platform regulation have stalled due to political disputes.
In the decade before this internet platforms could only be held liable for third-party content when they failed to comply with a specific judicial removal order, subject to limited statutory exceptions. The Supreme Court decided this failed to protect people's rights and democratic institutions and replaced it with four distinct liability regimes while introducing a duty of care alongside new transparency and due-process obligations.
Dr Kira said: "The Supreme Court responded to a real deficit of protection, but in doing so it crossed into a space that normally belongs to the legislature.
"By introducing a new liability regime linked to a duty of care and to the idea of systemic failure, the Court sought to move from a reactive system of content removal toward one centred on preventive governance.
"It demonstrates the Court's capacity to adapt an outdated statute to the new realities of digital platforms, but it also highlights the fragility of judicial law-making as a means of sustaining governance at scale."
The study also argues that the STF decision also served as a catalyst for subsequent reform. A law enacted last year in Brazil established new online protections for young people. The law, known as ECA Digital explicitly enshrines a duty of care for both parents and service providers. Brazil now prohibits online platforms from using the data of children and adolescents in ways that violate their fundamental rights and best interests and requires companies to assess and mitigate the risks to which they expose younger users.
Two executive decrees this year updated the secondary legislation to reflect the Supreme Court's new interpretation and allocated supervisionary powers to the National Data Protection Agency. Platforms now have to demonstrate they have adopted systems that identify and mitigate risks.
