BRAZIL Trends and Developments Contributed by: Diego Sens, Pablo Figueiredo and Maria Clara Ponciano Pupulin, Figueiredo Sens Advogados
The third difference is perhaps the most significant: a constitutional versus a statutory framework. Bra- zil’s June 2025 framework arises from the nation’s highest court’s constitutional interpretation and has immediate binding effect on all lower courts. The DSA required a multi-year legislative process, regulatory rulemaking, and phased implementation. Brazil’s shift occurred through judicial reinterpretation of an existing statute. The ruling immediately applies to all pending and future litigation. This creates differ- ent regulatory stability dynamics compared to Euro- pean legislative processes. Building mandatory compliance architecture For platforms operating in Brazil, the ruling in June 2025 requires immediate investments in compliance infrastructure across five critical areas. Each pillar addresses specific exposure vectors resulting from the new liability framework. Brazilian-domiciled legal entity and representative The Court mandated that all platforms maintain a legal entity incorporated in Brazil with registered headquar- ters. This entity must be capable of receiving and responding to judicial and extrajudicial notifications. It must maintain local representation, accessible user channels, self-regulation rules, and annual transpar- ency reporting. Platforms without proper legal representation face jurisdictional arguments in collective actions. More critically, the Court framed the lack of local represen- tation as evidence of systemic failure to take Brazilian obligations seriously. Courts can consider this factor when assessing damages. The compliance benchmark requires maintaining a registered Brazilian subsidiary. This subsidiary must have executive authority to make content moderation decisions without having to route them through non- Brazilian approval chains. Brazil-specific content policy alignment The Court’s categorical content list does not perfectly map to US or EU content policies. Brazilian law crimi- nalises certain speech categories under Penal Code provisions that lack First Amendment equivalents.
These include racial discrimination, homophobia, and religious intolerance. Global content policies designed for California-based review teams require localisation for Brazil. Platforms must recognise Brazilian criminal law definitions, not just platform community guidelines, as determinative. They must train moderators on Brazilian legal stand- ards for illegal speech. Platforms that cite community guidelines to justify not removing content that violates Brazilian criminal law will face systemic failure findings. The Court explicitly rejected private community standards as sufficient. Brazilian criminal and constitutional law definitions control. The compliance benchmark requires publishing Bra- zil-specific content policies in Brazilian Portuguese that include and contextualise local law definitions and relevant provisions, where applicable. Extrajudicial notification documentation system Every extrajudicial notification from a Brazilian user now creates potential litigation evidence. Platforms must implement timestamped logging of all notifica- tions received through any channel. They must create a documented substantive review with reasoning for removal or retention decisions. Platforms must track compliance with Brazil-specific service-level agreement requirements. They must maintain audit trails that show the identity and author - ity level of the decision-maker. In collective actions alleging systemic failure, plaintiffs will seek discovery of notification response data. The inability to produce systematic documentation of Brazilian notification handling is evidence of inad- equate systems. The compliance benchmark requires implementing ticketing systems that treat Brazil- ian extrajudicial notifications as a distinct category. These notifications require legal-hold documentation requirements. Proactive detection for categorical content For the Court’s defined categories of particularly serious illegal content, platforms must demonstrate
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