Platform & Marketplace Responsibility for Unlawful/Infringing Content and Safe Harbors

How are courts and regulators redefining "neutral” platforms?

That question set the stage during the WLG Intellectual Property Group’s virtual meeting earlier this month, where Tom Heremans of CMS Belgium opened with an overview of how EU case law has evolved on intermediary liability. Early decisions involving Google AdWords, eBay, and Amazon treated platforms as largely passive hosts. But more recent rulings have narrowed that protection. Courts are now scrutinizing whether platforms act too "actively” by curating listings, fulfilling orders, or presenting third-party products under their own branding. Tom's message was clear: design and perception matter. If users can’t easily tell where the seller ends and the platform begins, liability risk increases.

The Digital Services Act keeps the "no general monitoring” rule but raises the bar for traceability, transparency, and user reporting channels. Platforms that want to preserve safe harbor protection must show operational credibility—clear distinction between platform and seller, consistent takedown procedures, and strong documentation.

Brazil’s new model. Stephanie Consonni and Patrícia Martins of TozziniFreire explained how Brazil’s Supreme Court is moving away from the "court-order only” rule for content removal. The upcoming framework introduces a layered approach: notice-and-takedown for most unlawful content, stricter duties for certain categories, and presumptive liability for illegal paid ads unless removed promptly. While intellectual property isn’t explicitly named, members expect these changes to extend to IP claims as well—reinforcing that responsiveness and process will matter more than formalities.

Regional context. Dámaso Pardo of Bruchou & Funes de Rioja shared that Argentina’s courts emphasize subjective liability and have rejected a "right to be forgotten.” In practice, platforms like Mercado Libre already follow fast-response models similar to Europe’s, suggesting a regional convergence on diligence and transparency as the operative standard.

Speech and anonymity. Wiebke Baars of Taylor Wessing highlighted diverging German and Belgian approaches to anonymous online reviews and consumer complaints. Courts are weighing free expression against reputational harm, with disclosure orders sometimes emerging as a compromise.

AI and the next frontier. Members also discussed how generative AI is reshaping enforcement. In Brazil alone, courts have issued more than 1,500 AI-related decisions—mostly consumer-focused—with developers frequently held liable. The broader signal: regulators increasingly expect service providers to own and mitigate the risks of their systems.

Across jurisdictions, one theme stands out: safe harbor is becoming a function of operational credibility—how well a platform distinguishes its role, manages takedowns, and documents every step of its response.

Key Takeaways

●      EU courts now assess "neutrality” through user perception and platform behavior.

●      Brazil’s shift to notice-and-takedown and presumptive ad liability will reward well-documented compliance.

●      Latin American platforms are aligning with EU-style diligence and transparency.

●      Speech and anonymity remain unsettled; disclosure remedies are gaining ground.

●      AI-related liability is expanding quickly, with courts expecting proactive oversight.