Duty of care and regulation of digital platforms: a Brazilian perspective

Abstract

This policy brief reflects the key points discussed in a workshop with 28 experts from the public sector, academia, private sector, and civil society in November 2024, on the opportunities and challenges related to the concept of “duty of care” in the regulation of internet platforms in Brazil. The event was held under the Chatham House Rule and this document provides an overview of the discussions, proposing ways forward to support the advancement of the regulatory debate.

This workshop proved highly timely. Held shortly after the 2024 municipal elections, it facilitated a discussion of concrete cases involving the use of digital platforms by candidates and campaigns, uncovering new legal challenges. This post-election context, compounded by the imminent Supreme Federal Court (Supremo Tribunal Federal – STF) ruling on two cases concerning the Brazilian Internet Civil Rights Framework (Marco Civil da Internet – MCI – Law No. 12.965/2014), underscores the workshop’s importance. The STF ruling could significantly alter the legal framework for platform liability in Brazil, directly impacting the feasibility of a regime of positive obligations based on the concept of duty of care, as proposed by Bill No. 2630/2020 (under consideration since 2020). While this legislative proposal currently faces political deadlock, renewed debate seems increasingly likely given the evolving political landscape, including the 2025 leadership changes in the National Congress, the impact of the forthcoming STF ruling, and recent shifts in major social media platforms’ content moderation policies.

In this context, the workshop aimed to identify areas of consensus and opportunities related to the duty of care as a regulatory approach, as well as to prepare stakeholders for the next steps in the debate. This policy brief reports on these findings to support the future regulation of internet platforms in Brazil and contribute to the public debate. The conclusions of the debate—detailed in the final section of this brief—were related to:

• Mitigating risks and due diligence on digital platforms: elements for legislative updates

• The legal elaboration of the “duty of care” with a focus on its administrative dimension (as opposed to civil liability) 

• Definition and institutional design of regulatory bodies 

• Mechanisms for social participation

Keywords: duty of care, platform regulation, online safety, misinformation, Brazil