Brazilian Supreme Court refines its decision on application providers’ liability in ruling on motions for clarification
In brief
The Brazilian Supreme Court (“STF”) concluded, on June 17, 2026, its ruling on the motions for clarification filed in the cases that gave rise to Themes 987 and 533, concerning the civil liability of internet application providers for third-party content. The amendments do not alter the overall architecture of the new framework but rather refine sensitive aspects of the liability model and clarify relevant elements for its implementation.
Among the main adjustments are: (i) the express provision for joint and several liability between the provider and the author of the unlawful content upon receipt of an extrajudicial notice, coupled with the introduction of a safeguard based on the existence of reasonable doubt as to the unlawfulness of the content; (ii) the replacement of the “presumption of liability” with a “rebuttable presumption of fault” in cases involving unlawful content in paid advertisements and sponsored content, or artificial mechanisms for the inorganic dissemination of unlawful content; (iii) the possibility of seeking interim judicial relief to prevent content removal in situations involving the duty of care; (iv) the recognition of the Executive Branch’s authority to regulate the matter within the limits set forth in the Constitution (Articles 84, IV and VI), particularly with respect to regulatory, supervisory, and enforcement functions concerning the obligations imposed on internet application providers, as set out in the Court’s decision; and (v) a more precise definition of the temporal effects of the STF’s decision and of the deadline – set at 60 days – for the implementation of the obligations set forth in item 5 of the thesis, which concern the implementation of the duty of care. STF also declared the decision final and unappealable (res judicata) on the same date.
Notwithstanding these clarifications, the Court did not incorporate certain parameters discussed during the hearings on the motions for clarification, leaving several issues unresolved as to the operationalization of the new framework.
Background
STF had previously concluded, in June 2025, its ruling on Themes 987 and 533, declaring the partial unconstitutionality of Article 19 of the Brazilian Internet Legal Framework (“ILF”) and establishing a broader liability framework for internet application providers with respect to third-party content. Thirteen motions for clarification were subsequently filed and were adjudicated over the past two weeks. In the newly approved thesis, STF preserved the core structure of its determinations, but introduced adjustments to its wording and scope.
Under the expanded liability regime following the receipt of an extrajudicial notice – applicable to all unlawful or criminal content, except for content related to offenses against honor – STF now expressly provides that the provider shall be jointly and severally liable – rather than secondarily liable, as set forth in Article 21 of the ILF – together with the author of the content. At the same time, the Court introduced a safeguard providing that the provider will not be held liable where the existence of reasonable doubt as to the unlawfulness of the content is demonstrated, provided that the provider has conducted a diligent and qualified assessment. Consequently, the retention of documentation evidencing the moderation process becomes particularly relevant, especially where a decision is made to keep certain content available after receipt of a notice. The Court also clarified that this same logic of joint and several liability applies to accounts reported as inauthentic.
With respect to the scope of application of Article 19, STF introduced targeted adjustments to the thesis, including an express reference to civil unlawful acts against honor, alongside criminal offenses, as situations in which the provision continues to apply. The Court also more precisely delineated the scope of the exception applicable to certain providers, establishing that Article 19 remains fully applicable to e-mail services exclusively with respect to interpersonal communications protected by constitutional secrecy, but also including within this same category other providers that do not interfere with the communicational and informational flow, which constitutes a novel concept within the thesis.
Regarding the presumption-based liability regime, STF replaced the prior notion of a “presumption of liability” with a rebuttable presumption of fault, reinforcing that liability is fault-based and allowing for evidence to the contrary to be produced by the provider. This is a relevant change, as it removes interpretations that could suggest the imposition of liability on the provider in the absence of fault. In this same context, the Court also refined the wording of the scenarios giving rise to the presumption of fault, replacing the reference to “artificial distribution networks (chatbots or bots)” with “artificial mechanisms for the inorganic dissemination of unlawful content”, with a view to avoiding interpretations that could suggest that the use of automated technologies is per se unlawful.
Under the duty of care regime applicable to serious unlawful content (a closed list of offenses for which immediate removal is required, irrespective of prior notice), STF introduced an express provision establishing that both the provider and the party responsible for the content may seek interim judicial relief to prevent its removal, where appropriate.
In addition to maintaining its call for legislative action by Congress to enact new legislation on the matter, another relevant adjustment concerns the inclusion of an express statement that the Executive Branch has the authority to regulate the matter within the limits set forth in the Constitution (Articles 84, IV and VI), particularly with respect to regulatory, supervisory, and enforcement functions concerning the obligations imposed on internet application providers, as set out in the decision. This passage may be read as a possible acknowledgment of the Executive Branch’s recent regulatory activity on the matter, including the enactment of Federal Decrees No. 12,975/2026 and 12,976/2026.
The Court also further detailed the temporal modulation of the decision’s effects, establishing that the thesis will produce effects as from August 5, 2025, the date of publication of the minutes of judgment of its prior decision, except for acts of a continuing or permanent nature, such as content that predates such date but remained available thereafter. Decisions that have already become final and unappealable will be preserved. In addition, the Court established a 60-day deadline, counted from June 18, 2026, for the implementation of the obligations related to the duty of care.
Finally, notwithstanding the discussions held in recent weeks, the final wording of the thesis did not incorporate certain relevant points that had been proposed by different Justices, including the definition of more detailed requirements for the validity of extrajudicial notices, the adoption of an express “manifest unlawfulness” standard – or equivalent threshold – for the triggering of the duty of care regime, and the establishment of specific deadlines for content removal and responses to notices. The absence of these parameters leaves significant room for divergent interpretations and for the future development of case law and potential regulatory action in Brazil.
The amendments are expected to have a significant impact on the activities of internet application providers in Brazil and should be interpreted in conjunction with the recent provisions set forth in Federal Decrees No. 12,975/2026 and 12,976/2026, which also address the matter.
