Proposals for improving the Supreme Federal Court's thesis on the Civil Framework for the Internet in light of civil liability between progress and uncertainty

Abstract

This text critically analyzes the general repercussion thesis established by the Brazilian Supreme Federal Court (STF) in the judgment of Extraordinary Appeal No. 1,037,396, which recognized the partial and progressive unconstitutionality of Article 19 of the Marco Civil da Internet (MCI). Key areas for improvement are proposed based on the identification of certain conceptual and operational weaknesses in the formulation of the thesis that defined the contours of digital platforms’ liability for third-party content. The analysis addresses the following areas: (i) the replacement of the “presumption of responsibility” with a “relative presumption of fault”; (ii) the establishment of clearer and more objective criteria for content moderation, in line with the protection of freedom of expression and without enabling prior censorship by digital platforms; (iii) a more precise definition of the scope of the thesis concerning digital platforms with marketplace functionalities, aimed at ensuring consumer protection; and (iv) the necessary establishment of prospective effects (ex nunc) to guarantee legal certainty and consistency within the legal system