By establishing one and hypotheses in which they can be held responsible for the content of third parties, the (Federal Supreme Court) made a caveat about the electoral rules.
With this, according to experts consulted by Sheetthe result of the trial over it still leaves the scenario of rules that will be valid in the next elections in 2026.
Such a definition will involve the unfolding of different factors. Among them: Congress approve or not a new Electoral Code – and that deals with the matter – the (Superior Electoral Court) update its rules on electoral propaganda and, finally, the possibility of the Electoral Court defining new understandings from processes that reach it.
In addition, most of them understand that the thesis approved by the Supreme Court corroborates the understanding that the TSE has and expands the hypotheses of liability of the platforms.
In the thesis released on Thursday (26), the Supreme Court states that, as long as there is no new law, Article 19 of the Civil Framework must be interpreted in such a way that the application providers-as social networks-are “subject to civil liability, except for the application of the specific provisions of the electoral legislation and the normative acts issued by the TSE”.
Main point under discussion in the trial, this article provided that the networks were only subject to pay compensation for content posted by a third party if, after a court decision ordering the withdrawal, they kept the content in the air.
In the approved thesis, the – which until then included unaccinged nudity and copyright violation. It also created the obligation of proactive moderation by the networks for a list of themes, predicting punishment in case of systemic failure.
By 2024, the TSE had already approved one, predicting, for example, that networks can be held responsible if they do not “immediately” certain content categories, such as hate speech, that configure undemocratic crimes and misinformation against the electoral process.
Without an explicit trigger for this possible liability, —or that is, whether the gap would be completed with what provides for Article 19 of the Civil Mark or not. After the election, the doubt continued open, as it was not a decision.
For Fernando Neisser, lawyer and professor of electoral law at FGV-SP, the Supreme decision was to say that the thesis approved this week applies to situations outside the electoral context and that in it will be worth the electoral rules.
He interprets that, although the thesis does not explicitly affirm this, by relaxing Article 19 in various situations and saying that the TSE edits rules, the STF would be giving the possibility that the Electoral Court also flexes these rules.
“This is the feeling, which points to a path of validation of the flexibility of article 19 also in the electoral field,” he says. “But in practice, we will only know this a little further,” says Neisser, listing such eventual legislative change, update of the TSE or advancement of court jurisprudence on the subject.
In the assessment of Francisco Brito Cruz, IDP professor and a specialist in digital and electoral law, the STF traced a separation line with the electoral theme. “What the Supreme is talking about is like this: ‘Look, if Article 19 no longer exists, what goes for the electoral is what is in the electoral.’ I think that’s what he meant,” he says.
“[Mas] It does not mean that we know what is the path of interpretation. There are some things that will need to be reconciled, in my opinion, in the next TSE resolution process, “says Brito Cruz.
He points out there is no provision for what punishment for networks would be in case of non -compliance with obligations, for example, and that, regardless of the Supreme decision, there would be another conflict on the need for judicial notification – in the case with the election law – which would not be overcome.
For André Boselli, coordinator of NGO Information Ecosystems Article 19, an organization that works in the theme of freedom of expression, the thesis approved by the Supreme Court signals an understanding that the TSE can create new exceptions for accountability of social networks. And yet, the thesis goes in a path of validation of a broader interpretation of the rules already approved in 2024.
“If the interpretation I did is correct, that is, the Supreme Court recognizing that the exceptions that created it are valid, are constitutional, then nothing prevents the TSE from having this competence, according to the STF’s understanding, to create new exceptions,” he says.
Flávia Lefèvre, a specialist in digital and consumer law, in turn, understands that both the electoral rules and consumer protection and child protection have already created a duty of action from the platforms, which should remove content preventively. Therefore, for her, the judgment of the Supreme Court would not even be necessary to enable the networks to be held responsible regardless of non -compliance with a court order.
It thus considers that the Supreme Thesis only “reaffirms the reach, effectiveness, legality of the provisions that the TSE has established”.
“[A tese] It corroborates, confirms, the position of the TSE and the power that the TSE understands to have in the regulation of these themes at the time of the electoral context, “she says.
