Brazil’s Supreme Court to Strike Down Internet Governance Safe Harbor Clause

On June 11 and 12, 2025, a majority of Brazil’s Supreme Court voted to strike down the country’s internet governance safe harbor clause, impacting digital platforms in general and social media companies in particular. While the case is not yet closed and three other justices need to vote, it is likely that the final outcome will be a new set of rules requiring digital platforms to actively remove third-party content by themselves or upon user request without the need of a court decision, or face civil responsibility. This outcome would require digital platforms to adjust existing policies or put new ones in place in order to comply with the Supreme Court’s final decision.

Safe Harbor Clause

The Civil Rights Framework for the Internet Act of 2014 (“MCI”) is Brazil’s internet governance and use law. Its Article 19 establishes that “to secure freedom of speech and avoid censorship,” digital platforms can only be liable for third-party content if they refuse to comply with a court decision to remove it. This safe harbor provision applies to any “provider of internet applications,” including social media and other digital platforms.

Attempts to Regulate Social Media

Since returning to power in 2023, President Luiz Inácio Lula da Silva established the regulation of social media platforms as a key priority of his administration. This was part of a broader agenda to curb what he perceived as threats to Brazilian democracy by the far right.

In its first two years, the left-leaning Lula administration backed a move by the Speaker of the House of Deputies to approve the so-called “Fake News Bill.”  The bill introduces a new legal framework for social media, instant messaging, and search engine companies. However, the Speaker was not able to gather enough votes to approve it despite trying twice, respectively in 2023 and 2024.

One of the most controversial issues during the bill’s congressional debate was the need for and potential role of a federal regulator that would have oversight and enforcement powers over digital platforms. This was deemed by the opposition as “carte blanche” for government to censor online speech.

Supreme Court Steps In

In view of congressional resistance, the Lula administration actively sought Supreme Court support to regulate digital platforms through judicial decisions. The Court was already involved with cases related to the issue going back to the 2018 presidential election and the alleged creation and massive distribution of fake news to influence voters. Over the years, the Court also became involved in high-profile disputes with social media companies.

In addition to these cases, the Supreme Court was prompted to review the constitutionality of the MCI’s safe harbor clause. Out of the eleven justices, eight have already voted. Four justices voted that the clause is partially unconstitutional and should be kept only for crimes against honor; and another three justices voted to declare its full unconstitutionality. Only one justice so far has voted to keep the safe harbor in place as it is.

Impact on Digital Platforms

There is an expectation that the justices will try to find common ground and issue a unanimous decision, potentially taking into account President Lula’s and the congressional leadership’s views.

The chief justice is advocating for a so-called “right to care” thesis, according to which digital platforms would have a duty to put in place policies that demonstrate “care” with the truth and in combating online crime.

It is likely that the final outcome of the Supreme Court MCI review will be one where digital platforms would be required to remove third-party content by themselves or upon user request, or face civil responsibility.

What to Expect and Next Steps

It is not clear yet how far the Supreme Court will go in establishing new requirements. It can either establish general principles and request Congress to legislate on the matter by amending the MCI or establishing a new legal framework for digital platforms; or it can create a list of new requirements to be immediately implemented by companies. Some of the justices are of the view that the Court should simply extend Article 21 of the MCI, which requires digital platforms to remove content upon user request but is currently applicable only to private intimate materials, to all circumstances. Some are also of the view that digital platforms operating in Brazil must have a legal representative in the country, an issue at the center of a previous high-profile dispute.

The Court can also either leave the oversight and enforcement issue to be addressed by Congress or decide to grant these powers to an existing or new federal regulator. As at least one justice is advocating to make digital platforms equivalent to telecommunication companies when it comes to legal obligations, it is reasonable to assume that the Supreme Court might opt to empower the Brazilian National Telecommunications Agency (“ANATEL”) to play the role of regulator while there is no new legislation approved by Congress. Another candidate would be the Brazilian National Data Protection Authority (“ANPD”), which is already in charge of regulating data privacy and is actively pursuing the same role with regard to artificial intelligence (“AI”).

The Supreme Court will continue to review the MCI case on June 25, as three justices still need to cast their votes, but it might take some time for the justices to come up with a final, unanimous decision, especially if the Court decides to take into account the views from the Lula administration and congressional leadership. The Court might even include AI-related provisions into its final decision, as the executive branch is requesting – which would partially preempt congressional debate of a new AI legal framework.

It is not clear yet if and how Congress will react to the final decision, but there are at least three possible courses of action. First, the congressional leadership might decide not to act and leave the Supreme Court to set the rules. Second, Congress might decide to amend the MCI or approve a new legal framework for digital platforms, incorporating or modifying the Court’s decision, but facing the risk of a new legal challenge if modifications go against the views of the Supreme Court majority. Third, Congress might amend the Brazilian Constitution to partially or fully revert the Court’s decision – any constitutional amendment would require approval by three-fifths of each congressional chamber, taken twice.

While there is precedent for congressional action to revert Supreme Court decisions by constitutional amendments, the opposition to the Lula administration does not have enough votes to do so. The high vote threshold means that all parties in the center and the right would have to unite in support of the amendment, including those that have cabinet positions in the administration and are part of its congressional coalition.

Technology companies impacted by the Supreme Court decision should stay informed about how Congress and the executive branch plan to react to the final outcome as there might be opportunities to influence the final policy, especially if congressional leadership decides to act. They should also assess how the Court’s final decision will impact their business model in Brazil and what kind of policies they will need to put in place to comply with it and avoid civil liability generated by third-party content.