BRAZIL Trends and Developments Contributed by: Diego Sens, Pablo Figueiredo and Maria Clara Ponciano Pupulin, Figueiredo Sens Advogados
Notification requirements for other illegal content For all other illegal content, excluding defamation, platforms must maintain notification systems with three key features. They must accept complaints from affected individuals and their legal representatives. They must provide documented decision-making with specific reasoning for removal or retention decisions. They must enable judicial review of platform decisions through transparent documentation. The systemic failure standard means individual mod- eration errors do not automatically generate liability. However, patterns of non-responsiveness, inadequate staffing, or opaque decision-making will support lia- bility findings. Platforms can rebut presumptions by proving they acted diligently within a reasonable time- frame. Platforms that invest in robust, documented, Brazil- specific moderation infrastructure can defend against liability even when specific content slips through. Con- versely, platforms that treat Brazilian notifications as lower priority than US or EU complaints risk systemic failure findings. This demonstrates institutional choice The Supreme Court ruling applies prospectively to future facts and circumstances arising after June 26, 2025. This means platforms will not face liabil- ity under the new framework for content moderation decisions made before the ruling date. However, res judicata exceptions may apply where specific cases were already under judicial review at the time of the decision. Financial exposure under Brazilian collective litigation precedents While the decision establishes the legal framework, Brazilian collective litigation precedents provide con- crete quantification of financial exposure. The June 2025 ruling arrived against a backdrop of escalating platform liability judgments demonstrating Brazilian courts’ willingness to impose substantial damages. to underinvest in Brazilian compliance. Prospective application of the ruling
content and a court later determines it to be illegal, the platform may face civil liability for damages. Second, the Court established an automatic presump- tion of liability for illegal content distributed through paid advertisements or boosted posts. The Court rec- ognised platforms’ direct economic interest in mon- etised content. Platforms can rebut this presumption by proving they acted diligently within a reasonable timeframe to remove the content. Third, content disseminated through artificial distribu- tion networks triggers platform liability independently of whether notification is provided. The Court recog- nised that platforms possess the technological capac- ity to detect coordinated manipulation. Courts now expect deployment of technically feasible measures consistent with a duty-of-care standard. Understanding the systemic failure doctrine The ruling introduces a sophisticated liability frame- work that distinguishes between isolated content fail- ures and institutional inadequacy. The Court explicitly rejected strict liability while establishing a systemic failure standard. Platforms are liable not for individual posts, but for failing to maintain adequate modera- tion infrastructure and responsive notification mecha- nisms. Affirmative duties for specific content categories This doctrine operates on two levels. For the mass circulation of particularly serious illegal content, plat- forms have an affirmative duty to maintain proactive moderation systems capable of detecting and remov- ing such content without relying on notifications. These categories include terrorism, anti-democratic acts, child sexual abuse material, incitement to vio- lence, and hate speech. The Court determined these categories represent con- tent where illegality is objectively determinable without complex fact-finding. Platforms cannot claim good- faith uncertainty about whether such content violates Brazilian law. Failure to implement effective proactive detection for these categories constitutes, in itself, a systemic failure.
49
CHAMBERS.COM
Powered by FlippingBook