On June 26, 2025, Brazil’s Supreme Federal Court (STF) ruled, by majority vote, that part of Article 19 of Law No. 12,965/2014 — known as the Brazilian Internet Bill of Rights (Marco Civil da Internet) — is unconstitutional.
The decision, issued in the joint judgment of Extraordinary Appeals No. 1037396 and No. 1057258, represents a major shift in the liability framework for internet application providers in Brazil. It has significant implications for the protection of fundamental rights — including the enforcement of intellectual property rights in the digital environment.
Understanding Article 19 of the Brazilian Internet Bill of Rights
The Brazilian Internet Bill of Rights (Marco Civil da Internet – MCI), established by Law No. 12,965, came into effect on June 23, 2014. It set out the responsibilities of internet service providers, defined the public sector’s role in promoting the social potential of the internet, and outlined user rights and guarantees.
The law addresses several key areas, including data protection, e-commerce, cybercrime, intellectual property, internet governance, and the regulation of public internet access centers.
Notably, copyright protection was intentionally excluded from the MCI at the request of the Ministry of Culture, on the grounds that Brazil’s Copyright Law (Law No. 9,610/1998) is still under revision and that these issues should be addressed in the updated legislation.
As a result, paragraph 2 of Article 19 of the MCI explicitly excluded internet application providers from liability for third-party content that infringes copyright or related rights. It left such liability to be defined by future, specific legislation.
In this legislative gap, Brazil has followed a notice-and-takedown approach, similar to the U.S. system, when dealing with copyright and related rights violations online.
However, when it comes to industrial property rights — such as trademarks, patents, and industrial designs — and acts of unfair competition carried out over the internet, Article 19 established that internet platforms would only be held liable for damages caused by third-party content after failing to comply with a specific court order requiring the removal of the infringing material. This created a subjective liability regime (based on fault), not a strict liability one.
In practice, this meant that simply receiving a notice or complaint was not enough to hold a platform liable. Only if the provider ignored a judicial order with a clear identification of the infringing content (preferably including the exact URL) could it be held civilly liable. Otherwise, the provider would not be held responsible.
Over time, however, Article 19 came under increasing criticism for being ineffective in protecting fundamental rights — such as personal honor and image — especially in cases of widespread dissemination of illegal content. It was also criticized for failing to adequately safeguard industrial property rights in the digital space.
Cases Heard by the Supreme Court: RE No. 1057258 and RE No. 1037396
The controversy reviewed by Brazil’s Supreme Court (STF) stemmed from two specific legal cases:
- RE 1057258 (Topic 533): In this case, reported by Justice Luiz Fux, an internet application provider appealed a decision holding it liable for moral damages after failing to remove offensive content posted by students against a teacher in a virtual community. The Supreme Court ruled in favor of the provider, overturning the damages award. However, the Court also acknowledged the need to reinterpret the scope of the existing legal provision.
- RE 1037396 (Topic 987): Reported by Justice Dias Toffoli, this case involved a platform’s failure to act against a fake social media profile that used a woman’s image to post offensive content. The case highlighted the limitations of the existing legal framework, which required a court order before any liability or remedial action could be imposed on the platform.
The ruling included a modulation of effects, meaning that the new guidelines will apply prospectively only. This preserves final court decisions already rendered and ensures legal certainty going forward.
Thesis Established by the Supreme Court
Until new legislation is enacted, Article 19 of the Brazilian Internet Bill of Rights (MCI) must be interpreted to allow for the civil liability of internet application providers, except where specific provisions of electoral law or regulations issued by the Superior Electoral Court (TSE) apply.
Key elements of the Supreme Court’s ruling include:
- Internet application providers may be held civilly liable, under Article 21 of the Brazilian Internet Bill of Rights, for damages resulting from third-party content involving criminal or unlawful acts — without prejudice to their duty to remove such content. The same rule applies to accounts reported as inauthentic.
- In cases involving crimes against honor (such as defamation, insult, or slander), Article 19 of the MCI remains applicable, without excluding the possibility of content removal based on extrajudicial notification.
- In cases involving repeated reposting of offensive content that has already been deemed unlawful by a court decision, all social media platforms are required to remove identical content, even without a new court order, once they receive a judicial or extrajudicial notice.
- A presumption of liability is established for internet providers in cases involving unlawful content, particularly when it concerns:
- paid advertisements or sponsored content, or
- (b) the use of artificial distribution networks, such as chatbots or bots.
- Internet application providers are liable when they fail to promptly disable access to content that constitutes serious criminal offenses, as listed in the following exhaustive list:
- (a) anti-democratic acts and conduct;
- (b) terrorism or preparatory acts of terrorism;
- (c) incitement, assistance, or encouragement of suicide or self-harm;
- (d) incitement to discrimination;
- (e) crimes committed against women;
- (f) sexual crimes against vulnerable individuals, including child pornography and other serious crimes against children and adolescents; and
- (g) human trafficking.
Liability will not be strict, but systematic omissions and lack of due diligence may be considered a breach of the provider’s duty of care.
Article 19 remains applicable to email providers, private messaging services, and videoconferencing platforms intended for closed meetings, with respect for the confidentiality of communications.
Platforms will be required to implement self-regulation mechanisms, complaint channels, transparency reports, and maintain legal representation in Brazil.
Implications for Intellectual Property Rights
Although the ruling did not directly address intellectual property rights, the Supreme Court’s new interpretation of Article 19 represents a significant step forward in protecting intangible assets online.
This is because the Court extended the application of Article 21 of the Brazilian Internet Bill of Rights — previously limited to violations of privacy involving the unauthorized sharing of images, videos, or other private sexual content — to include other crimes and unlawful acts (except for crimes against honor). This broader scope now covers violations of industrial property rights, which are classified as both criminal offenses and civil infringements under Brazil’s Industrial Property Law.
As a result, internet application providers may now be held civilly liable for damages caused by third-party content that infringes industrial property rights, based solely on extrajudicial notification, without the need for a prior court order.
This shift — easing the previous requirement for a judicial order — creates an important legal precedent that can significantly strengthen efforts to combat digital piracy, trademark misuse, counterfeit products, and violations of patents and industrial designs in online environments.
In particular, for cases involving ads promoting counterfeit goods or inauthentic profiles infringing third-party trademarks, the new interpretation allows for a faster and more effective response by rights holders — without the burden of filing a separate lawsuit for each incident — while placing a greater duty of care and diligence on platforms to act against such infringements..
Conclusion
The Brazilian Supreme Court’s ruling marks a major shift in the legal framework governing civil liability on the internet. By relaxing the prior judicial order requirement established in Article 19 of the Internet Bill of Rights, the Court signaled that the protection of fundamental rights — including industrial property rights — demands more effective mechanisms aligned with the fast-paced nature of the digital environment.
In this new context, the direct liability of digital platforms may simplify the enforcement of rights such as trademarks, patents, and industrial designs, as rights holders now have access to faster legal tools — especially extrajudicial notifications and takedown requests — to seek the removal of infringing content and fight the online promotion of counterfeit products, without necessarily having to initiate costly and time-consuming lawsuits.
It is now up to Brazil’s National Congress to take on the challenge of debating and approving new legislation that ensures adequate and effective protection of fundamental rights, while offering greater clarity and legal certainty.
This is an opportune moment for IP rights holders to adapt to this new reality and reassess their monitoring and notification practices with digital platforms, which are now expected to act with greater diligence to avoid liability.
The full version of the Supreme Court’s ruling is available at:
Our team is available to help review extrajudicial strategies and notification procedures, assess preventive protection measures against online infringements, and provide legal representation in disputes involving offensive or infringing content.
