Editor’s note: This post was originally published on 6 April 2025 in JOTA Jornalismo. It has been translated from Portuguese below.
The regulation of digital platforms has become one of Brazil’s most pressing issues, encompassing topics from fake news to political debates. While regulation has been at the center of public debate for years, it gained a new sense of urgency given the intensification of tensions between Brazilian authorities and large companies in the sector—and the resulting rush in the search for an outcome, both in the Judiciary and the Legislative.
Central to this discussion is Article 19 of the Marco Civil da Internet, which stipulates that mandated online content takedowns require a court order. The Supreme Court is currently deliberating on its future, and there is an expectation that the judgment—suspended due to a request for review last year—will be resumed this semester.
While the trial centers on only one out of the 32 articles of the Marco Civil, this decision will significantly impact the online experiences of all Brazilians and influence the balance between freedom of expression and censorship.
Declaring it unconstitutional would undermine legal security, increase censorship risks, and destabilize the country’s digital ecosystem, once this is not merely a question of regulating social media—it is about safeguarding an open and functional Internet for all.
Article 19 of the Marco Civil da Internet was created to protect freedom of expression online. It establishes that Internet intermediaries—including providers, platforms, and technical services—are only responsible for content created by others if they fail to remove it after receiving a court order. This framework was designed to prevent censorship and ensure that content removal is fair and not arbitrary.
The text was the result of a broad democratic debate—as was the entire Marco Civil—and created to guarantee a right balance between protecting society against harmful content and ensuring the free circulation of information.
The Supreme Court is reviewing the constitutionality of Article 19, with different justices taking varying positions. So far, two justices have voted for the complete unconstitutionality of the article, while Chief Justice Luís Barroso has defended its maintenance with adjustments, declaring it partially unconstitutional without changing the text—preserving the requirement for a court order to remove content, but providing exceptions for specific cases.
Justice André Mendonça’s upcoming vote is highly anticipated. He has previously expressed concern about removing content without a court order, suggesting alignment with Barroso’s position.
It’s important to understand that Article 19 doesn’t simply offer “protection to large platforms,” as some suggest. Rather, it serves as a pillar that guarantees legal security to all components of the digital ecosystem—not just social networks.
According to the ICT Households Survey, conducted by Cetic.br (Regional Center for Studies on the Development of the Information Society), about 86% of the Brazilian population are Internet users. This means that any change to current regulations could directly impact almost the entire Brazilian population if not done carefully.
When a Brazilian accesses a website, their request travels through multiple interconnection points and processing, such as the DNS (domain name system), backbone providers, and hosting servers. In many cases, CDNs (content delivery networks) optimize delivery by storing content copies on servers distributed geographically across the country, reducing latency and improving the user experience. These are all examples of what we call intermediaries, and they are essential for the Internet to function properly.
This technical interdependence means that poorly conceived regulations, which fail to differentiate the specific functions of each intermediary, can have far-reaching consequences for the entire infrastructure.
Declaring Article 19 entirely unconstitutional would be akin to destroying the foundation of a house because of a crack in the wall. It would have a cascading effect, harming the entire Internet infrastructure. Without the protection of Article 19, intermediaries could face pressure to remove content without due process, leading to censorship and instability.
While holding platforms accountable for illegal content is a legitimate concern, the solution must consider the technical complexity involved and avoid disproportionate measures that could disrupt the entire network.
The most appropriate form of accountability should be based on the specific function each intermediary performs, allowing for a more precise focus on addressing real regulatory challenges. Maintaining the requirement for a court order to remove content—except in serious cases, as already defined under Article 21—is essential to prevent abuse.
Brazil can learn from other regulatory approaches. In Europe, the Digital Services Act (DSA) holds platforms responsible for illegal content but carefully protects technical intermediaries that don’t interfere with content, implementing robust transparency and due process mechanisms.
The Supreme Court’s decision on Article 19 will shape the future of Brazil’s digital landscape. Justices must choose between preserving an open, accessible Internet for all—small businesses, content creators, and users—or enabling a system that risks legal uncertainty and increased censorship. We urge the court to ensure that regulation strengthens rather than destabilizes Brazil’s Internet ecosystem.
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