On June 5^th, 2025, the Brazilian Supreme Court (STF) resumed judgement of two appeals (RE 1.057.258 and RE 1.037.396) concerning the liability of internet service providers (ISPs) for user-generated content. The session followed the vote delivered by Justice André Mendonça, who endorsed the current judicial-takedown regime established under Article 19 of the Brazilian Internet Act (Law #12,965/2014 – MCI).

Previously, Justices Dias Toffoli and Luiz Fux, who serve as the reporting-justices in the cases, voted to strike down Article 19 of the MCI, thus rejecting the existing liability standard.

In December 2024, Justice Luís Roberto Barroso issued a partially dissenting opinion. He defended that the removal of content related to crimes should be subject to a notice-and-takedown regime, except in the case of crimes against honor and general civil offenses, in which a court order should be required for removal. Justice Barroso also mentioned that platforms should have a duty of care in relation to certain types of content (e.g. CSAM or terrorism) and should be held liable for damages arising from a systemic flaw in removing such content.

Justice Mendonça's vote, delivered on June 5^th, 2025, emphasized the principle of freedom of speech, as well as the technical complexity inherent in regulating digital platforms. He argued that such regulation should not be driven by the Judiciary.

On the merits, he found Article 19 to be constitutionally valid. Nonetheless, he proposed an interpretation tailored to the heterogeneity of online services. His vote introduced a series of legal theses, summarized below.

• Private messaging: private messaging platforms should not receive the same treatment as social media. In light of data protection, privacy, and intimacy rights, platforms shall not be required to monitor private communications.
• Account suspension or removal: suspension or removal of users' account is deemed unconstitutional, except where accounts are demonstrably fake or used for criminal activity.
• User identification: platforms must enable identification of violators to ensure accountability.
• Due process in content removal: where removal without judicial intervention is allowed by law or platform policies, ISPs must provide transparent procedures with notice and appeal rights.
• Platform immunity: ISPs shall not be held liable for not removing third party content, except in cases explicitly defined by law.
• Liability for platform conduct: platforms liability may rise from (i) the failure to enforce terms of service equitably, and (ii) the lack of proper security measures to prevent unlawful activity.
• Judicial orders: takedown court orders must be well-founded and communicated to platforms—even in sealed cases—with a right to appeal.

Justice Mendonça's vote marks a pivotal moment in the case. While maintaining the existing judicial-takedown model, his vote advances a more nuanced approach to platform regulation. Notably, he asserts that user account suspensions and removals are presumptively unconstitutional, reinforcing the need for proportionality and procedural fairness in content moderation and governance.

The Court will continue the judgment with the votes of remaining Justices, and our team is closely monitoring all developments in this matter. For further information, please contact us at info@lickslegal.com.