Hate Speech on Platforms: The Limits of Free Expression

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Hate speech on digital platforms sits on the border between the right to express one’s thoughts and the constitutional prohibition on discriminatory conduct. Anyone who works with the law must read the line between freedom and responsibility with care.

What counts as hate speech

Hate speech is any verbal, written, or audiovisual expression that attacks, humiliates, or incites violence against a person or group because of race, ethnicity, religion, nationality, sexual orientation, gender identity, social status, or disability. Legal scholars place the concept close to the criminal offenses of incitement to crime and aggravated insult (injúria qualificada), but it is not the same as either one.

It differs from criticism, satire, and legitimate dissent because its core is the dehumanization of the target. A person who criticizes an idea is taking part in public debate. A person who engages in hate speech strips the other person of the standing to take part in the conversation and treats them as a category to be excluded from social life.

Contemporary legal scholarship starts from the view that hate speech does not seek to persuade but to exclude. For that reason, Brazilian law treats it as unlawful whenever it takes the form of conduct defined as an offense by criminal or administrative legislation, even when it is published online.

Freedom of expression has constitutional limits

The 1988 Federal Constitution protects the free expression of thought in Article 5, item IV, while prohibiting anonymity. Item IX guarantees freedom of expression in intellectual, artistic, scientific, and communication activities. These guarantees, however, coexist with equally fundamental provisions: the prohibition of racism (item XLII) and the protection of honor, image, and privacy (item X).

No fundamental right is absolute. In the Ellwanger case (HC 82.424), the Supreme Federal Court (STF) held that anti-Semitic statements are not protected by freedom of expression, because they amount to the crime of racism. Later, in judging ADO 26 and Writ of Injunction (Mandado de Injunção) 4.733, the Court treated homophobia and transphobia as equivalent to the crime of racism set out in Law 7.716/1989, broadening the scope of protection against discriminatory speech.

Law 7.716/1989 defines the crimes that result from prejudice based on race, color, ethnicity, religion, or national origin. The Penal Code, in Article 140, paragraph 3, provides for racial insult (injúria racial), with an increased penalty when it is committed through a medium that makes it easier to spread, a description that online settings often fit.

The final decision will frame the balance between the duty of proactive moderation and the ban on prior censorship, a central issue for contemporary digital law.

Liability of digital platforms

The Marco Civil da Internet (Brazil’s Internet Civil Framework, Law 12.965/2014) governs how application providers operate in Brazil. Under the current regime, a platform is civilly liable for third-party content only if it fails to comply with a specific court order to remove it. This model, known as judicial notice and takedown, was established by Article 19 of the law and aims to keep the intermediary from becoming a private censor.

The issue has entered a new chapter with the Supreme Federal Court’s judgment of Extraordinary Appeal (Recurso Extraordinário) 1.037.396, which examines whether the platform liability regime is constitutional. The final decision will frame the balance between the duty of proactive moderation and the ban on prior censorship, a central issue for contemporary digital law.

While regulation is still settling, platforms enforce their own terms of use and remove content under private policies. Users targeted by hate speech may seek an injunction (tutela inibitória), compensation for moral damages, and criminal measures, depending on the seriousness of the case and the nature of the harm suffered. None of this affects the direct liability of the person who made the offensive statement.

Frequently Asked Questions

What is the difference between opinion and hate speech?

An opinion is aimed at an idea, a course of conduct, or an argument, even when it is blunt or controversial. Hate speech is aimed at a person or group and attacks their humanity or their place in society. When a statement strips someone of dignity because of their origin, beliefs, gender, or sexual orientation, it goes beyond legitimate debate and enters the territory of criminal and civil wrongs.

What is the punishment for hate speech online?

The conduct may constitute crimes under Law 7.716/1989, with a prison sentence (reclusão) of one to five years, increased when committed through mass media or published on the worldwide computer network. There is also the offense of racial insult under the Penal Code, with a prison sentence of one to three years. Civil liability for moral damages is added to this, and the court sets the amount case by case.

How do I report hateful content on social media?

The first step is to report the content directly to the platform through the reporting channels described in its terms of use. At the same time, the victim can file a police report, especially at police stations that specialize in cybercrime, and consult a lawyer about a civil action to have the content removed, to identify the author by court order, and to obtain compensation for the harm suffered.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.