Da isenção à diligência: o diálogo UE–Brasil entre o regulamento dos serviços digitais e a reconstrução jurisprudencial do Marco Civil da Internet

the EU–Brazil dialogue between the Digital Services Act and the judicial reconfiguration of Brazil’s Civil Rights Framework for the Internet (Marco Civil da Internet)

Abstract

This article examines the liability of intermediary service providers for third-party content as a matter of fundamental rights, seeking to balance exemption from liability and due diligence in light of the dogmatics of conflicts between fundamental rights. It proceeds from the premise of a transition from a model of conditional exemption from liability (safe harbour) to a regime structured around due diligence obligations, highlighting the importance of the procedural dimension and the recognition of the status activus processualis of digital service recipients. Taking as normative reference points the Digital Services Act in the European Union and Brazil’s Marco Civil da Internet, as interpreted by the Federal Supreme Court in its judgment on Themes 987 and 533, the article develops a comparative analysis of both models, adopting a methodology grounded in normative and jurisprudential analysis, with attention to their articulation with the multifunctional character of fundamental rights norms. The findings reveal a functional convergence between the European and Brazilian systems, marked by the growing centrality of due diligence as an expression of fundamental rights protection duties. This evolution reflects a response to emerging risk scenarios in the digital environment and legitimises the imposition of duties not only on the State and supranational entities, but also on private companies. The article concludes that the dialogue between the EU and Brazil should not be understood as a mere comparative exercise or contingent convergence, but rather as a requirement to ensure the effective protection of fundamental rights beyond the traditional boundaries of the State.