There is a strange smell in the air: on the one hand, transnational corporations endowed with algorithmic infrastructures and economic power, capable of shaping elections, monetizing violence and challenging democracies display their discomfort with the rule of law; On the other hand, commentators equipped with millimetric rules of separation of powers state that the Executive Branch is prohibited from, by means of decree, detailing the meaning of open concepts provided for by law.
Laws define objectives, prohibitions and sanctions; Executive norms strengthen and update the application of the law by state bodies. The regulatory power has autonomy, it does not “copy and paste” the law. But it is not exempt from control through judicial and legislative channels.
This elementary architecture of public law has been in force for many decades in the country. It organizes normative production shared between the Legislative and Executive branches.
Weeks ago, . Articles 19 and 21 of the 2014 Law had their interpretation redefined by the STF (Supreme Federal Court) in 2025. The court understood that the parameters for holding platforms accountable no longer meet constitutional requirements. Reoriented the contours of regulation.
The decrees make it possible to apply the Marco Civil to changes determined by the STF. They regulate the law, not the STF decision. They just adapt it. They try to link platforms to Brazilian laws to meet demands such as combating violence against women, racism, the sexual exploitation of children, the instigation of suicide and digital scams that take money from the economy and vulnerable populations.
Criticisms of the decrees have been loudly phrased. Its most curious feature is the rhetorical exaggeration, the hyperbolic tone of lawyerly language without nuance, just noise. The decrees would have “rewritten” the Marco Civil da Internet, . A symbol of “usurpation”. A “total inversion”, not just any inversion.
The text of the decrees, however, is quite careful and prudent. It determines that the ANPD can only inspect platforms under the terms of Law 12,965, of 2014, and Law 15,211, of 2025. They do not interrupt or end the legal debate, they only respond to a state of regulatory need.
The engineering of the separation of powers has devices to unblock the legislator’s inertia. The fragile regulation of big tech provides a good example that the silence of the legislator is not always an authentic expression of popular sovereignty. In this case, there is documented evidence of the capture of Congress by the most insidious corporate power ever seen in the history of capitalism. The world’s democratic parliaments are under siege by the force of this lobby.
The Brazilian Congress remains free to improve the legislation. If you continue to play still, it facilitates the violation of rights. As parliament does not have a monopoly on legal creation, the Executive and Judiciary can occupy space, incidentally. It is not a gambiarra, but a trail of constitutional emergency. This institutional plasticity escapes the manual schemes, but is more faithful to the constitutional project.
Paralysis only serves private interests.
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