Changes in Meta’s Content Moderation Policies: Repercussions in Brazil

Last Tuesday (January 7th, 2025), Mark Zuckerberg, CEO of Meta, announced on his Instagram profile a change in the content moderation policies of the company’s platforms. Meta will reduce content moderation filters and replace fact-checks on social networks by a system of “community notes”. The company is responsible for Facebook, Instagram and Threads, platforms that previously used these systems with the aim of preventing the circulation of fake news, hate speech and harmful content.

Zuckerberg reiterated that the company strictly prevents the dissemination of harmful content and gave examples such as drugs, terrorism and child exploitation. The main modification announced was the deactivation of automatic filters that prevented the dissemination of content infringing any type of violation of the Terms of Use, and from now on such filters will only prevent the dissemination of illegal content that represents a “serious” violation of the terms of use. For “minor” infringements, the removal of content will only take place following a complaint made by users, which will be evaluated on a case-by-case basis.

In his speech, Zuckerberg justified this transition as a way of prioritizing freedom of expression on the platforms and resisting government pressure to censor content, especially the political one. He stressed that the decision is a response to the growing global trend of restricting freedom of expression, particularly in European and Latin American countries, and hopes that the US government will oppose to such measures in other countries.

Although these changes could transform the global social media landscape, in Brazil, Meta platforms are subject to the principles, rights and duties set out in Law 12,965/2014, known as the Brazilian Civil Rights Framework for the Internet (in Portuguese, Marco Civil da Internet), issued after wide participation of civil society in the construction of rights and obligations online.

In fact, its Article 19 of the sets out the cases in which internet application providers could be held liable for damages arising from infringing content published by third parties. However, according to the provision, providers can only be accountable if they do not remove the content identified after a specific Court order (judicial notice and takedown).

Currently, the country is focused on the Federal Supreme Court (STF), which is analyzing the constitutionality of article 19 of the abovementioned Law. The plenary of Supreme Court started judging the Extraordinary Appeals No. 1057258/MG and 1037396/SP in November 2024, since the discussion of the cases possess general repercussion. The conclusion of this judgment could redefine the responsibility of platforms in the country for illegal content published, such as fake news, fake profiles, sale of illegal products, among others.

So far, three Justices have already voted, and the current situation is:

– Two votes in favor of the total unconstitutionality of art. 19 of the MCI.

– A vote in favor of the partial unconstitutionality of art. 19 of the MCI.

In addition to the unconstitutionality of art. 19, there is another question to be monitored: do the platforms have a duty of vigilance or checking shared content beforehand (as Zuckerberg has announced, he will only do with “illegal” content and “serious” infringements)? Or is it enough (as Zuckerberg has announced he will do with “minor” infringements) for the platforms to act quickly on user reports?

It is possible that the Supreme Court’s final decision will compel internet platforms to quickly evaluate and decide on the complaints made, in which case a delay in the decision or a wrong determination by the platform (i.e., maintaining content that violates Brazilian law, or removing content that does not) could lead to the platform being held responsible. The hopes are that the Brazilian Supreme Court will make it clear in its decision what the procedure should be for platforms in the future, so that they can continue to operate in Brazil.

It seems clear that the mere preservation of art. 19 as it is by the Superior Court is highly unlikely, not only because there is currently a perception that requiring legal action to remove harmful content creates an unreasonable burden for victims, but as well because it could be overwhelming to the Judiciary to decide about claims that could have been settled out of Court. The trial of the Extraordinary Appeals is currently suspended due to the Court recess and is scheduled to resume in February 2025. It is worth remembering that for Article 19 to be declared unconstitutional, at least six of the eleven Supreme Court Justices must vote in favor.

We will keep monitoring this subject, as well as its implications in Brazil. If you wish to receive more information, please contact us at juridico@kasznarleonardos.com.