Brazil's new internet intermediary liability regime is underway. The implementation of changes established by the Supreme Court includes notice and takedown mechanisms and duty of care obligations. Caution is crucial as these measures can create problematic incentives for enforcement overreach and over censorship of protected speech.  

The court in June issued a new decision clarifying elements of its 2025 finding that the previous liability regime was partially unconstitutional. The government also published in late May two presidential decrees that detail how the new rules apply. 

Under the new regime, social media platforms and other internet applications that curate or interfere with posts can be held liable for third-party content if they don’t remove it after being notified by the user seeking take down unless there's a reasonable doubt that the content is unlawful. For certain specific cases, like crimes against honor (e.g. defamation), platform liability still depends on failing to comply with a judicial order.  

For some serious crimes, like human trafficking and crimes against women, applications have a duty of care to remove related content immediately and can be held liable when systemically failing to do so. The precise limits of what constitutes a systemic failure are still unclear. There are also stricter rules for paid ads, boosted content, and bots. 

The previous regime, set by Article 19 of the law known as the Brazilian Civil Rights Framework for the Internet (“Marco Civil da Internet” in Portuguese), sought to protect freedom of expression online by holding internet application providers liable for user content if they failed to comply with a judicial order to remove it. There were specific, limited exceptions to this rule, like the unauthorized disclosure of nude or private sexual images. This was meant to prevent providers from over-removal of user content to avoid legal action. Yet, the court found that this provision failed to sufficiently safeguard democracy and fundamental rights. 

We outlined the thorny context leading to this shift in Brazil’s intermediary liability rules, including Big Tech’s alignment with the far right and hurdles to approve platform regulation in Congress, through a proper legislative process. 

Brazil’s shift is part of broader discussions and changes in response to growing concerns over online harms and digital platforms’ abuses. However, responses focused on platforms’ liability of user-generated content carry important traps and risks—from entrenching dominant platforms’ power over the information flow to escalating arbitrary online surveillance and censorship. The path ahead must prevent this to the extent possible, and the new presidential decrees provide a mixed contribution towards this task. 

New Decrees: Strengths and Flaws  

The government published two decrees regulating the new regime set by the Supreme Court. One introduces changes to its previous regulation, the Decree 8.771/2016, detailing elements of the decision, including additional duties that the court only briefly addressed (Decree 12.975). The other regulates measures to tackle violence against women online (Decree 12.976). 

The Supreme Court's decision didn't establish guidelines to protect users' due process rights when facing content take down and removal demands. Instead, it relies on providers to self regulate, which could lead to over censorship.  

The decrees’ provisions on user notification systems are helpful in this sense. They stipulate that providers must inform users (both the notifier and the content author) about the decision to remove or keep the content up, why, and the means to appeal. The guidance makes explicit that a platform may reconsider and reinstate content after an appeal and must explain its reasons to the party requesting removal and content author. The decrees also address concerns with the weaponization of notification systems, establishing that internet applications must adopt measures to prevent abuses. 

Decree 12.795 reinforces that applications can keep content up after notification when there’s reasonable doubt that the post is unlawful, stating that the analysis should consider the context of the publications, freedom of religion and belief, and any informational, educational, or critical, satirical, or parodic purpose with the aim of ensuring freedom of expression. With these guidelines, it aims to mirror the Digital Services Act's "notice-and-action" approach. Moreover, for sexual related, intimate content, platforms will provide a specific and easily accessible notice channel where victims or their representatives can follow the case. 

One of the most concerning provisions requires applications to proactively report content related to criminal conduct on their platforms to government authorities. Applications must send the post along with information that can identify the user. The Ministry of Justice will regulate this provision, something the Supreme Court didn't touch on in its decision. While it seems to apply just to those providers already required to comply with new content-related obligations (exempting email and videoconference providers, for example), it takes a disastrous step beyond. It’s not only about preventing the spread of unlawful content online; it gets platforms to police and report users to authorities by handing identification information apparently without a court order. 

Decree 12.795 also details the definition of messaging applications that are exempt from notice and duty of care obligations. It excludes features for public dissemination of content and open groups so that the exemption doesn't apply. It's still unclear what exactly open groups mean. Especially regarding end-to-end encrypted applications, it's crucial that duties to monitor and take down don't affect conversations that are under this security architecture. Perhaps more troubling, the Supreme Court stated in its clarification ruling that a judicial order can determine email, voice and video conference, and messaging providers to take down content of private communications. Any measure must respect privacy and free expression safeguards and refrain from undermining end-to-end encryption. 

Furthermore, decree 12.976 importantly addresses the protection of women online, but it contains a broad definition of online violence against women that will guide how platforms handle takedown notices they receive. This definition involves "any act, conduct, or omission that causes (...) psychological, political, or economic suffering (…) in any aspect of their lives, committed, instigated, facilitated, or aggravated, in whole or in part, by the use of digital technologies." Its breadth could unfortunately result in censoring legitimate criticism and other protected speech, which platforms and authorities must avoid. 

The decrees also establish powers to the Brazilian Data Protection Agency (ANPD) to oversee and regulate the new regime. Among controversies, the decrees give ANPD the power to apply penalties for breaches of content-related obligations. These obligations go beyond agency competencies set in the Data Protection Law and the Law 15.211/2025, focused on the online protection of children and adolescents. They are also not clearly covered by Article 12 of Marco Civil as it stipulates administrative penalties for violations of its data privacy provisions.  

We appreciate that ANPD has been open to civil society's demands and concerns. While it’s crucial that the agency conducts its oversight role preserving a proportionality commitment and keeping solid participation channels, sanction powers must be prescribed by law. 

Alerts for the Path Ahead 

It’s true that there are critical platform accountability problems we must address, especially regarding the big players. And yes, platforms should align their policies and practices with human rights standards, including by dealing diligently with the dissemination of unlawful, toxic content. But accountability efforts should look at platforms’ systems and processes and promote measures to put checks on the power of tech giants, instead of having a prevalent focus on policing and reporting user behavior.  

Key digital competition measures to regulate gatekeeper platforms are under discussion in bill 4675/2025, but the proposal is pending in Congress with no clear timeline for approval.  

One important measure is to ensure accountability of take-down requests, including by the government. The Supreme Court’s decision stipulated that internet applications should publish transparency reports of the removal notices they receive. Government institutions should follow suit by periodically disclosing aggregate data of their own requests to online platforms, covering various types of user data and demands for content and account restrictions. Back in 2016, Marco Civil’s regulation decree established that all federal bodies must annually publish statistical reports on their requests of subscriber data to providers. To the best of our knowledge, federal bodies generally fail to meet this provision. ANPD can play a crucial role in stepping up transparency in the implementation of the new rules. 

Ultimately, platform accountability under the new liability regime hinges on how accountable its application will be by platforms and state institutions, and on the regime's commitment to protecting fundamental rights, including freedom of expression and privacy.