A atuação do judiciário brasileiro no contexto da regulação das plataformas digitais: uma análise a partir do julgamento no STF do artigo 19 do Marco Civil da Internet

Abstract

The present study is part of the Digital Constitutionalism agenda, seeking to understand the role of the Brazilian Judiciary in regulating digital platforms, based on the judgment of Article 19 of the Marco Civil da Internet (Brazilian Internet Bill of Rights). Thus, this study has an empirical character and employs the method of bibliographic review to analyze the emergence of the Digital Constitutionalism agenda. Secondly, a case study is conducted based on the Public Hearing held on March 28 and 29, 2023, regarding the judgment of Article 19 of the Marco Civil da Internet, along with an analysis of the opinion delivered by the Justice, Dias Toffoli, in December 2024. Accordingly, the specific objectives of this study are, first, to identify the convergence of arguments presented during the public hearing with the Digital Constitutionalism agenda and, second, to understand the role of the Judiciary in this context, as well as the risks of judicial activism in light of the Legislature’s omission to respond to the issue. As conclusions, it was observed that uncertainties remain regarding the role of the Judiciary in regulating digital platforms, with arguments spanning different perspectives. On one hand, some advocate for the Judiciary’s legitimacy in resolving so-called hard cases; on the other, it is argued that platforms themselves are capable of moderating content that violates fundamental rights and that the dependence on judicial notification, due to systemic delays, fosters impunity for platforms and creates negative consequences for victims. Furthermore, it was found that, although there is no explicit mention of the Digital Constitutionalism agenda, the arguments presented during the public hearing reflect concerns of this strand of contemporary constitutionalism, such as the accumulation of power by digital platforms and the risks to fundamental rights in the digital environment. Finally, the study identified a trend toward judicial activism following the period of digital liberalism, which allowed platform self-regulation, combined with the Legislature’s inertia in the face of rapid and complex technological changes with legal implications. However, based on the analyzed case, it is not yet possible to affirm the occurrence of judicial activism in the case of the Article 19 of the Marco Civil da Internet, since the judgment is still ongoing and the analysis is based on a single case, despite being one of significant public repercussions.