This article was written and published on 27 March 2022 by Tow Fellow Patricia Campos Mello for Folha De S.Paulo and was translated from Portuguese to English for the Tow Center. It is reposted here with permission and thanks.
At least 750,000 institutions’ and politicians’ profiles, from the President of the Republic to councilmen, will be able to challenge internet platforms in court and demand swift reinstatement of accounts or posts that breach rules if the fake news law is approved in its current draft.
If approved, the latest version of bill 2.630, introduced Wednesday (24th March) by Deputy Orlando Silva (Brazilian Communist Party-SP) will extend special treatment to all accounts maintained by such politicians on Facebook, TikTok, Twitter, YouTube, and Instagram, which are used for official statements.
This means that if a municipal secretary has ten identified profiles on Instagram, all of them may be entitled to the same protection — for example, if they breach rules such as prohibitions against inciting violence and threats to the electoral system. Additionally, the text provides for the extension of parliamentary immunity to content disseminated by legislators on internet platforms.
According to Orlando Silva, the legislation provides for judicial fast-tracking, but also creates important obligations for all such accounts of public interest — which will be prevented from blocking other accounts and monetizing their profiles, and will be required to adhere to government rules. “Whoever reads the text will see that its objective is the opposite. We are establishing obligations that must be met by accounts of public interest. The law is not there to protect deputies. It will just speed up judicial decisions, since these are accounts that, in theory, are of public interest,” he says.
The deputy will forward the bill to the President of the Chamber of Deputies, Arthur Lira (PP-AL), this Tuesday (29th). Lira has told representatives that he wants to hold an urgent vote on the procedure and the bill in quick succession.The article that lays down extra protection for accounts of public interest has support from lawmakers in ruling and opposition parties alike.
It emerged from various bills attached to 2.630 by Bolsonarist deputies which had the main aim of protecting politicians from the “Trump effect”.
Former President of the USA Donald Trump was banned from Twitter, Facebook, Instagram, and YouTube in the aftermath of the invasion of the Capitol on January 6, 2021. He was accused of using social media to incite violence and undermine the integrity of elections.
Defenders of the bill’s protections claim that they are a means of preventing internet platforms from having too much power over accounts of public interest, which have no way to appeal arbitrary decisions.
Francisco Brito Cruz, director of InternetLab, is a critic of extending parliamentary immunity to social media.“It’s not about simply repeating what’s already in the Constitution. It leaves room for interpretation by the courts that platforms are required to maintain parliamentarians’ content, that such content is immune in relation to the platform’s private rules,” he says. “And we all know that parliamentarians often make problematic posts on social media that cause damage in real life. They incite violence.”
However, Cruz says that judicial fast-tracking for accounts of public interest, unlike parliamentary immunity, is an appropriate measure. “It’s an intelligent solution, because sometimes platforms abuse their power in removing an account of public interest that’s being used legitimately.”
Attorney Diogo Rais, co-founder of the Instituto Liberdade Digital (Digital Freedom Institute), argues that the goal of making accounts of public interest comply with government rules is praiseworthy, but will come at a high price.“Article 22 [of the bill] lists a very large number of people, and some are in office for a very short time. How do you press the on-off button and find out who has left office? Just thinking about municipal secretaries in Brazil’s 5,570 municipalities; that’s a lot of people in office for a short period… Who’s going to monitor all that?” he asks.“There’s also the issue of electoral equality. Everyone in public office will have a protected account, and will be competing with people who don’t have the same kind of digital protection. It creates a kind of superpower.”
Another controversial aspect of the bill is the article that equates internet platforms with the media. Companies and some civil society representatives claim that this violates Brazil’s Internet Bill of Rights and may make tech giants’ activity in the country unfeasible.
Influenced by the Federal Supreme Court, the text has incorporated an article prescribing that platforms will be considered “mass media” for the purposes of the Ineligibility Law — which provides for the disqualification of candidates for elected office who resort to “misuse of mass media or its outlets”.
The incorporated article refers to the TSE (Superior Electoral Court) decision last year in the lawsuit, dismissed by the court, that petitioned for disqualification of the Bolsonaro-Mourão ticket due to mass shootings that occurred during the 2018 electoral campaign.
In that decision, as well as the decision that resulted in the disqualification of state deputy Fernando Francischini for a livestream on Facebook containing false allegations of fraud in the 2018 election, the court equated internet platforms with mass media.
However, big tech firms fear that this goes against the spirit of the Internet Bill of Rights. The legislation that regulates the internet in Brazil establishes, in article 19, that platforms can only be civilly liable for damages resulting from content produced by third parties if, after a specific court order, no action was taken.
By considering internet platforms to be mass media, as producers and not just disseminators of content, the fake news law could impose the same obligations and responsibilities on platforms that traditional mass media, such as TV and newspapers, are subject to. According to Orlando Silva, the text only applies to this electoral context and does not violate the Internet Bill of Rights or make platforms liable for third-party content.
At the beginning of the month, tech giants launched a public relations offensive against the bill, publishing announcements on different media outlets claiming that it would lead to negative consequences for small companies that use online advertising for their business.
Google, as well as publishing an open letter, sent emails to advertisers claiming that the bill would jeopardize companies of all sizes. The pressure had an impact. Article 7, which could be interpreted in such a way as to prevent the use of users’ data in order to sell targeted advertising to specific audiences, had its text modified.