In a pivotal decision with widespread implications across Latin America and possibly affecting its relationship with the United States, Brazil’s Supreme Court has agreed, in majority, that social media platforms should be held liable for unlawful content shared by their users.
The court was tasked with ruling on two significant cases as it sought to establish guidelines for regulating social media companies amidst rising instances of online fraud, the circulation of child pornography, and increased violence among teenagers. Detractors warn that the move could endanger freedom of expression on these platforms, potentially prompting preemptive censorship to avoid legal issues.
Justice Gilmar Mendes became the sixth member of the 11-judge panel to advocate for legislation that would allow lawsuits and impose fines on companies like Meta, X, and Microsoft for user-generated content. Although voting is ongoing, the support of a simple majority will suffice to pass the measure.
This decision emerges following a cautionary statement from U.S. Secretary of State Marco Rubio, who suggested the possibility of visa restrictions for foreign officials perceived as censoring American citizens. Among those is reportedly Brazilian Justice Alexandre de Moraes, recognized for actions against social media platforms he believed were non-compliant with Brazilian mandates.
As of now, Justice André Mendonça remains the sole opponent, having disclosed his dissenting vote earlier. The specifics of the regulation’s implementation remain undecided. Mendonça has emphasized the role of social media in promoting transparency by challenging public institutions, political figures, and digital giants.
Justice Flávio Dino, who cast the first vote on Wednesday, reminded the court of recent school shooting incidents in Brazil, influenced by social media. He referenced a disturbing post from a user who expressed satisfaction in witnessing the suffering of victims’ families.
“Social media has not necessarily brought humanity to its nobler pursuits,” Dino remarked.
Once the vote concludes and the result is published, this measure could become law, but Brazil’s Congress retains the ability to put forth new legislation that might reverse this decision.
Existing law states that social media companies are only held accountable if they fail to remove harmful content following a court order. The debate regarding the regulation of social media in Brazil became especially heated after the January 8 riot in 2023, when former President Jair Bolsonaro’s supporters stormed major government buildings in the capital, Brasilia.
Companies need to proactively manage content, argues Alvaro Palma de Jorge, a law professor at the Getulio Vargas Foundation in Rio. “Platforms should take precautionary measures instead of waiting for judicial orders to take down content,” he said.
This ruling aligns Brazil’s stance on tech oversight more closely with the European Union, which has taken a proactive approach in curbing the influence of social media and other digital platforms.
The Brazilian Chamber of Digital Economy, based in São Paulo, warns that holding platforms automatically accountable may lead to unintended censorship as companies might engage in preemptive content removal to avoid penalties. “This type of liability benefits large corporations with strong legal defenses, potentially hindering smaller national enterprises and competition,” they stated, mentioning possible barriers to innovation.