In practice, this meant that, until judicial intervention, content could remain accessible without consequences for the providers, except in the situation addressed by Article 21, which deals with the non-consensual dissemination of intimate or nude images, where a victim’s complaint alone sufficed to compel the provider to act.

However, on 26 June 2025, Brazil’s Supreme Federal Court (STF) ruled that, until Congress enacts new legislation on the matter, Article 19 must be interpreted in conformity with the Constitution, in order to provide stronger protection for individuals against criminal, unlawful, and harmful online content. In Brazil’s civil law tradition, this technique — known as “interpretation in conformity with the Constitution” — forms part of the broader system of constitutional review. Its purpose is not to strike down legislation whenever possible, but rather to preserve it by aligning statutory provisions with constitutional principles, thereby avoiding a declaration of unconstitutionality.

Within this framework, the Court determined, inter alia, that internet application providers may be held liable without a prior court order when, having received private notice of unlawful or criminal material on their platforms, they negligently or willfully fail to remove it. This interpretation extends the model already provided in Article 21 of the Brazilian Internet Civil Framework, originally confined to the non-consensual disclosure of intimate images.

In two specific scenarios, platforms may also be held liable absent a court order or private notice: where unlawful content appears in paid advertisements or sponsored posts and where illicit material is disseminated through artificial distribution networks employing bots.

Finally, in respect of certain crimes, providers are required to ensure that such material is not published at all. Here, a duty of care applies, obliging companies to act diligently and proactively to prevent the circulation of such content, regardless of any notice or judicial order.

With respect to crimes against honour, the STF maintained its previous position that content removal requires a court order, due to the subjective nature of the assessment and the potential risk to freedom of expression.

At this juncture, freedom of expression remains a fundamental right in Brazil; however, as in any established constitutional democracy, it is subject to limitations and does not protect hate speech, defamation, libel, or threats to social harmony. This approach is consistent with Brazil’s obligations under both Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and Article 13 of the American Convention on Human Rights (ACHR).

Additionally, for-profit platforms cannot claim neutrality while exploiting engagement-driven algorithms that monetise harmful content. In this way, given legislative omissions on this complex and urgent matter, it is considered the STF’s role to act as guardian of the Constitution, deciding in accordance with constitutional principles and the protection of fundamental rights — even when such decisions may be unpopular.

However, although the STF’s attempt to curb the superpowers of big tech companies is legitimate, it cannot be denied that the approved thesis is very broad and abstract, and did not adhere to the facts of the concrete cases — which concerned claims for damages in situations where platforms had complied with court orders to remove content, but only after undue delay. Such conduct leaves room for divergent interpretations and creates legal uncertainty due to the difficulties of its practical application.

In other words, at this point, the STF effectively “legislated” by reshaping Article 19, which violates the principle of legal reservation under Article 19 of the ICCPR, as well as Advisory Opinion OC-5/85 of the Inter-American Court of Human Rights, issued under Article 64 of the ACHR.

In effect, Brazil has moved toward a regulatory framework similar to the European Digital Services Act (2024). Providers of digital applications are now required to act promptly to remove seriously unlawful content and may be held liable if systemic failures occur.

Thus, the ongoing judicial and legislative efforts in Brazil reflect the global challenge of balancing freedom of expression with the duty to prevent the spread of harmful content online. This landmark ruling fundamentally reshapes the responsibilities of digital platforms in Brazil, representing a significant step in regulating online content and safeguarding fundamental rights globally.

Unfortunately, the law has posed a number of issues because it does not contain criteria that differentiates between mere drug users and drug traffickers. Each judge can determine the limit of narcotics that can be considered for personal use, leading to significant discrepancies in judgments and a tendency to consider poor, black individuals as traffickers. For this reason, there is an urgent need for objective criteria to differentiate drug users from traffickers. Moreover, Brazilian law contradicts itself since, despite this mitigation in punishment for use of drugs, possession of drugs is still punishable by imprisonment.

To resolve this interpretative gap, the Supreme Federal Court of Brazil has been adjudicating, since 2015, Extraordinary Appeal No. 635,659. This case will determine the constitutionality of criminalising the possession of small quantities of cannabis for personal use through police investigations and criminal proceedings. The Court is also expected to establish clearer rules for the application of the law, defining the quantity of cannabis that can be considered for personal use.

Currently, five out of the eleven Supreme Court justices have voted in favour of decriminalising the possession of small quantities of cannabis, while three justices have voted against it. The idea of setting a quantity limit to differentiate between a user and a trafficker, however, has been supported by all eight justices who have voted on the matter. Currently, there is no consensus on what that quantity should be; it is to be defined by the justices once the trial has concluded. Although the judgment has evolved over the last year, there is currently no set timeline for when the final judgment will be made.

As a point of comparison, Chile, Colombia, Ecuador, Paraguay, Peru, Uruguay, and Venezuela, all situated in Latin America, do not regard the use of cannabis as a criminal offence. They have already established, within their legislation, the quantity threshold that distinguishes a user from a drug dealer. Outside the Americas, the same happened in Portugal, a nation that has exerted significant historical and cultural influence on Brazil due to its colonial heritage.

This case is of the utmost importance, as the Brazilian judicial system continues to classify individuals possessing small amounts of drugs as traffickers. Over the last 20 years, this has led to a significant increase in the prison population, primarily affecting the poor, homeless, black people, women, and people living in low-income areas.

It can be concluded that a one-size-fits-all criminal punishment for the simple possession of a small amount of illegal drugs often has disproportionate negative effects, stigmatising the user and hindering prevention and harm reduction efforts. Additionally, these measures exacerbate structural racism and hinder the research and development of medicinal uses for these substances, all while not effectively combating drug use. It is essential to cease the classification of casual drug users as criminals, in accordance with the legislator’s intent and the country’s latest regulations, which allow, with certain authority and in limited situations, the medicinal use and distribution of cannabis by the public health system.

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