The decision of the (Federal Supreme Court) completed 104 days this Wednesday (8) without the ruling having been published.
According to a survey by Sheetis almost double the average period for publishing rulings in cases of general repercussion in the Supreme Court between 2020 and 2025, which was 56.7 days.
The delay is atypical. Only 12.91% of the 364 rulings analyzed in the period took more than 104 days to be published.
The STF’s own regulations determine, since 2020, that “unless there is a justified reason”, publication in the Diário da Justiça must be made within 60 days from the session in which the result of the trial was announced. Even discounting the Judiciary recess, which was from July 2nd to 31st, the publication of the ruling was overdue.
The judgment is the document published after the collegial decision of the ministers that contains a report on the process, reasons for the decisions and the final theses agreed by the majority.
STF ministers heard by the Sheet deny that the delay is related to pressure from the American president.
Trump mentioned the regulation of platforms when imposing 50% tariffs on Brazilian products in July.
The Supreme Court’s decision on the Marco Civil is an open target by the White House Commercial Office (USTR), which could result in more sanctions against Brazil.
“The Brazilian Federal Supreme Court recently voted to hold social media companies responsible for illegal posts by their users, even in the absence of a court order to remove such content […] Such a regime could trigger preventative removal of content […] as well as significantly increasing the risk of economic harm to American social media companies,” says the opening document of the 301 investigation.
In the view of a member of the federal government, the publication of the ruling at this time could disrupt the process.
According to STF ministers and some lawyers, the delay is atypical, but justified, as this is a complex case. THE Sheet found that 3 of the 11 STF ministers have not yet released their final votes, a necessary step to prepare the ruling.
“There were major disagreements between the ministers on several points, it is reasonable for them to take time to adjust their votes”, says Eloísa Machado, law professor at FGV-SP and coordinator of the Supreme Court in Pauta.
But she says she believes the nature of the decision also has a bearing. “This is a case about non-trivial, very complex issues under discussion in Brazil and around the world, coupled with high political temperatures; the interests of very powerful companies are involved.”
Eloísa emphasizes that greater effort is needed to reach an agreement. “It’s not just deciding whether a law is constitutional or not, and adding up the votes for and against and reaching a ruling.”
In its decision of June 26, the Supreme Court established several theses that increase the responsibility of big techs for third-party publications.
If a publication constitutes a crime or illegal act, a private, extrajudicial notification is enough for the platform to be held liable if it does not remove the content.
For everything else, article 19 of the Marco Civil da Internet still applies, that is, it is necessary to have a court order – and this includes crimes against honor.
Furthermore, the STF established a type of duty of care, a list of types of content that must be proactively removed by platforms. In this case, big techs can only be held responsible if there is widespread non-compliance, not sparse. And the court also provided for liability without notice in the case of boosted content and advertisements.
Theses of general repercussion of the Supreme Court come into force after the publication of the minutes of the trial, without the need for a ruling. But the non-publication of the ruling creates legal instability.
Last week, for example, the Supreme Court of Justice ruled on a case against Google in which the plaintiff requested the immediate application of the theses defined in June by the Supreme Court.
The STJ decided that it is “not yet appropriate” to apply, in cases being processed in court, the theses defined by the STF.
According to the STJ, “even if it is not necessary to have a final and unappealable […] for the topic of general repercussion to have immediate application”, it is prudent to wait for the ruling “to guarantee legal certainty in view of possible modifications of the binding thesis or modulations of effects arising from embargoes for clarification”.
The minister, who left the presidency of the STF at the end of September, praised the decision on the Marco Civil da Internet in July, saying that it “was extremely balanced and moderate” and “an exemplary movement for the world in general”.
According to internet platforms, there are already several legal actions (no decision yet) and extrajudicial notifications asking for the immediate application of the Supreme Court’s theses. It is unclear how this will be analyzed by lower courts.
The companies ask the Supreme Court to clarify several points of the theses. But only after the publication of the ruling can the platforms file embargoes.
According to Rafael Mafei, law professor at USP and ESPM, the delay in the ruling reduces the effectiveness of the decision. “This undermines decisions in lower courts, many are waiting for the ruling to decide”, he says.
Ademar Borges, professor of constitutional law at IDP, states that the absence of a ruling should not prevent the immediate application of the theses, since, according to him, there will be no significant changes with the embargoes for declaration.
