BRAZIL Law and Practice Contributed by: Lucia Ancona Lopez de Magalhães Dias, Maria Fernanda Saab Nersessian and Camila Emi Tomimatsu, Magalhães e Dias
cable to social media platforms, without prejudice to the applicability of the CDC or of the criminal law against libel and torts in connection with defamatory or slanderous messages and “fake news”. In addition, the Supreme Court issued a thesis (in the context of Issues ( Temas ) 533 and 987 of general repercussion) in July 2025 defining the responsibility of social media platforms for content, which was not previously set forth in Law 12965/2014. The thesis increases the accountability of social media platforms – through transparency measures – to improve dia - logue and responsivity to demands from civil society and Brazilian authorities, such as to remove irregular content through the simple “notice and take down” procedure, which was not applied previously. 5.5 Influencer Campaigns and Online Reviews 5.5.1 Special Rules/Regulations on Influencer Campaigns CONAR’s Guidelines (2021) define “advertising by influencer” as “a third party’s message to stimulate the consumption of goods and/or services conveyed by so-called Digital Influencers hired by the Advertiser and/or Agency”. It has three cumulative requirements: • promotion of a product, service, cause or other associated sign; • involves compensation or a commercial relation - ship, even if not financial, with the advertiser and/ or agency; and • editorial control over the influencer’s post. Regarding editorial control, the Guidelines consider hiring (formally or informally) of an influencer to have occurred when an advertiser requests or suggests that an influencerpromote a product or service, which may involve general or specific guidance regarding content or the time, frequency or form of posting. Mere contact between the advertiser and the user, through a simple introduction to the product or the provision of guidance on its consumption or care, is not considered editorial control in accordance with the applicable ethical and legal rules. The Guidelines also tackle the following issues.
• The need to clearly identify advertising by influenc - er, pursuant to the identification principle, through the use of identification tools provided by platforms (eg, paid partnership) or by using hashtag advertis - ing, paid content or sponsored posts, among other options. • Activation messages, also known as “gifted/ received” ( recebidosbrindes ): These messages are provided without any financial benefit – and without editorial control – but they nevertheless do not constitute merely the spontaneous mention of a brand. This must be clarified for the consumer. CONAR understands that it is necessary to men - tion the relationship that underlies any reference to an advertiser’s brand, in accordance with the principle of transparency. • Engagement: This is defined as “content generated by the User through the offering of gifts or benefits through promotional actions, contests, ”chal - lenges” or the like that encourage the User to post based on engagement”. An engagement campaign will be considered “regular” if (i) the promotion mechanics are compatible with the regulations governing the free distribution of gifts, and (ii) it respects the CBAP rules. • Endorsement: If a company shares or makes use of organic content from a third party (ie, content created spontaneously) that mentions its brand or product, such content becomes “new content of an advertising nature”, and it must therefore com - ply with the rules of the CBAP. It is worth noting that companies cannot share or endorse “irregular” organic content, even if it is neither contracted nor solicited. 5.5.2 Advertiser Liability for Influencer Content The advertiser will always be held liable for content posted by its influencers. If a specific agreement was reached regarding the posted content, the liability is unequivocal. If an influencer is strongly connected with a brand (its “poster boy/girl” or “brand ambas - sador”), then even if the content/influencer was not specifically paid for or hired, the advertiser is answer - able for that content, given the connection of the influ - encer with the brand. Here, legal problems mainly arise when such a rela - tionship does not exist (ie, when the influencer does
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