NOVEMBER 2021 UPDATE TO BRAZIL’S REGULATORY FRAMEWORK

NOVEMBER 2021 UPDATE TO BRAZIL’S REGULATORY FRAMEWORK

Tech Against Terrorism first analysed Brazil’s regulatory framework in the first edition of the Online Regulation Series, in November 2021. We updated this analysis for our Online Regulation Series Handbook, published in July 2021.[mfn]pp.142 -145[/mfn] Our first analysis focused on The Brazilian Internet Freedom, Responsibility and Transparency Act,[mfn]Lei Brasileira de Liberdade, Responsabilidade e Transparência na Internet[/mfn] known as the “fake news” bill – see the Handbook entry at the end of this update. The Brazilian Government has made no significant progress on the passage of the “fake news bill” into law since our last update in July 2021. The bill is still with the Chamber of Deputies – which must approve the bill before it is sent to be signed into law by President Jair Bolsonaro, who has said he would instead exercise his veto[mfn]See the original analysis of Brazil’s online regulatory framework below.[/mfn] – and appears to have lost some of its initial momentum.

However, legislative discussion around the regulation of online content in Brazil has in 2021 been dominated by the dispute between President Bolsonaro and the Brazilian Senate over President Bolsonaro’s provisional decree concerning online moderation. With this decree, President Bolsonaro intended to limit social media firms’ capacity to moderate content by reference to their own guidelines.

Issued in September 2021 with immediate effect, the decree professed to tackle “the arbitrary and unjust deletion of accounts, profiles and content by providers”. It also established new rules restricting platforms’ moderation ability by prohibiting the removal of content by reference to platforms’ content guidelines, such as their Community Guidelines or Terms of Service.[mfn]France24 (2021), Bolsonaro issues decree limiting social media moderation.[/mfn] The decree further included provisions identifying “just causes”, in which the removal of content or suspension of users from online platforms would be justifiable, which included suppressing the incitement of violence. Once President Bolsonaro had issued the decree, it was for the Brazilian Congress to ratify the provisions and make them law.[mfn]Ibid.[/mfn] The decree was quickly struck down by the President of the Brazilian Senate, Rodrigo Pacheco, who argued that provisional decrees were reserved for addressing urgent matters and that the decree in question “unilaterally changed Brazil’s internet legal framework without allowing for a proper discussion beforehand”,[mfn]Camelo Janaina (2021), Senate strikes down Bolsonaro’s social media decree, The Brazilian Report.[/mfn] whilst creating “legal insecurity” around the regulation of online content.[mfn]MercoPress (2021), Brazilian Senate repeals Bolsonaro decree against social media alleged censorship.[/mfn] At the same time, a Supreme Court Judge ordered that the decree be suspended.[mfn]Ibid.[/mfn]

Whilst the decree was characterised by President Bolsonaro as an attempt to protect freedom of expression online, members of Brazil’s political opposition, including Alessandro Molon – the Rapporteur[mfn]The position of “Rapporteur” is a domestic appointment answerable to the Chamber of Deputies.[/mfn] on Brazil’s Internet Bill of Rights[mfn]See the original entry bellow for more information about the Brazilian Internet Bill of Rights.[/mfn] – have criticised the bill for being a tool to “prevent the disinformation and hate speech that [President Bolsonaro] and his supporters disseminate from continuing to be removed from the platforms”.[mfn]France24 (September 2021), Bolsonaro issues decree limiting social media moderation. President Bolsonaro has had his content removed by online platforms on different occasions, with Youtube, Twitter and Facebook also removed videos shared by President Bolsonaro for containing misinformation and unfounded claims about the Covid-19 pandemic. See: Euronews (2021), Jair Bolsonaro sanctioned by social media companies for COVID vaccine misinformation; BBC News (2021), YouTube removes Bolsonaro videos for Covid misinformation; and Marcello Maria Carolina (2021), Brazil Senate leader kills Bolsonaro decree criticized by tech firms, Reuters.[/mfn] Beside the criticisms of the bill’s underlying effect of protecting President Bolsonaro and his allies’ content online, the bill was also criticised for potentially enabling the future dissemination of online misinformation, which under the decree’s proposals providers would be impeded by law from removing. Legal experts have also made the criticism that such a major legislative change should not be initiated by Presidential decree – in particular as it would alter the Brazilian Internet Bill of Rights.[mfn]Mari Angelica (September 2021), Brazilian senators unite against decision to limit content removal from social networks, ZDNet.[/mfn]

Bolsonaro’s short-lived decree recalls Poland’s so-called “anti-censorship” law in that both the Polish and the Brazilian proposals were presented as necessary to safeguard freedom of expression online and to protect users from tech companies’ “arbitrary and unjust” content moderation practices. Moreover, both prospective laws emerge from similarly tense political environments in which, under the guise of protecting freedom of expression, can be seen as an intrusion of culture wars and tense political environments in online regulation. In Poland, the government explicitly stated that the “anti-censorship” law was needed to counter the censorship of “conservative” voices by “leftist” tech platforms. In Brazil, President Bolsonaro’s attempt to prevent platforms moderating their services must be understood as a reaction to tech sector “censorship” both of Bolsonaro personally and of his supporters for misinformation.[mfn]France24 (September 2021)[/mfn]

THE ONLINE REGULATION SERIES 2020 | BRAZIL

Amongst the different global key trends identified by Tech Against Terrorism, Brazil would follow (if the Brazilian Internet Freedom, Responsibility and Transparency Act is passed):

• Outsourcing legal adjudication to tech companies

• Mandating a local presence

Brazil is the leading country in terms of internet and social media use in Latin America, and a major market for large tech platforms, including WhatsApp and Facebook. Brazil’s approach to online regulation has been shaped by the purported disinformation campaigns that were coordinated on WhatsApp. The messaging app has been accused of being used “for the dissemination of fake news”, and critics of the country’s so-called “fake news” bill have said that WhatsApp served as a “standard” for new regulation of messaging apps in the country.[mfn]The first draft of the so-called “fake news” bill included provisions related to limiting the size of group chats and the possibility to forward messages, which were similar to current limitations used by WhatsApp.[/mfn]

Brazil’s regulatory framework:

• The “Brazilian Internet Bill of Rights” (MCI),[mfn] [/mfn] was passed in 2014 and fully implemented in 2016, “modifies the country’s constitution to give citizens, the government and organizations rights and responsibilities with regard to the Internet”:
• The bill lays out a set of 10 principles for the governance of online networks in Brazil, including: “network neutrality, privacy, freedom of expression, security and universality.”[mfn]The principle of universality mainly relates to ensuring the diversity of internet users and “spurring innovation[/mfn]
• The bill underwent a long process of reviews, involving individuals, organisations, tech platforms, and other governments between 2009 and 2014.
• The MCI makes Brazil one of the most populous countries in the world where the “democratic norm of equal access to information online” is inscribed in its Civil Code.

• Brazil’s Anti-Terrorism law,[mfn]Lei nº 13.260, de 16 de Março de 2016[/mfn] 2016, amended in 2016 ahead of the Olympic Games. The law does not address use of the internet for terrorist purposes, but covers issues related to the promotion and preparation of terrorism.

• The Brazilian Internet Freedom, Responsibility and Transparency Act,[mfn]Lei Brasileira de Liberdade, Responsabilidade e Transparência na Internet[/mfn] or Law PLS2630/2020, known as the “fake news” bill:
• The law was passed by the Senate in June 2020. However, no progress has been made since, and the law has yet to be approved by the Chamber of Deputies and signed by President Jair Bolsonaro – who is already expected to organise a popular consultation about the law, and ultimately veto it.[mfn]See: Boadle Anthony (2020), Brazil's Bolsonaro would veto bill regulating fake news in current form, Reuters; and Tulio dos Santos Diogo (2021), Brazil, democracy, and the “fake news” bill, Global Americans.[/mfn]
• The law is meant to counter the spread of misinformation online and would oblige messaging apps to implement measures to ensure the traceability of messages shared, as well as compel tech platforms to monitor “inauthentic behaviour”.
• The law does not set a territorial limit to its application, and instead would apply at “company level”.

Key takeaways for tech platforms:

• The MCI exempts platforms from liability for user-generated content, unless in cases where a court order states the content was illegal, in which case platforms must remove the content or face legal liability:
• Judicial authorities have previously used defamation as a basis for ordering the removal of content.
• Authorities have also used violations of electoral laws as a ground for removal orders.
• Court orders can mandate the removal of content or blocking of accounts globally, as was the case with Facebook in August 2020 – see below.

• Brazil’s “fake news” bill, if signed into a law, would have major consequences for online platforms, especially encrypted messaging services. This is because it will impose:
• Traceability requirements for messaging services, with messaging apps to be required to store the logs of “broadcasted messages” (meaning messages sent by more than 5 users and reaching at least a 1,000 users) for three months. This requirement is linked to a “technical capability directive” for platforms to be able to trace back individual messages.
• Verification of the identity of users upon receiving “reports of non-compliance with the fake news law, evidence of automated or inauthentic accounts, or upon court order”. There is currently a lack of clarity regarding what is considered to be a “report of non-compliance” in this instance.
• The appointment of a local representative.
• Platforms employees’ access to user databases in the country, in case they would be required to share user data with law enforcement.
• Additionally, the law could open the way for platforms liability for user-generated content.

Tech Against Terrorism’s commentary:

Global application of the law

Tech Against Terrorism is concerned with the seemingly unlimited scope of the so-called “fake news” law, which is not limited to Brazil’s jurisdiction, but would apply at “company level”, no matter the user’s location or nationality.[mfn]Rodriguez Katitza and Schoen Seth (2020), 5 Serious Flaws in the New Brazilian “Fake News” Bill that Will Undermine Human Rights, Electronic Frontier Foundation.[/mfn] If the law is passed, Brazil’s authority would have the power to regulate “fake news” online globally and request global communication to be traceable. A single country potentially setting the rules for online content worldwide represents a significant threat to freedom of expression online and users’ rights.

This is not the first regulatory proposal with extra-territorial implications. The 2020 Rules in Pakistan[mfn]See our dedicated entry on Pakistan in the Online Regulation Series Handbook (pp. 65 – 69).[/mfn] are to apply to all online users of Pakistani nationality, no matter where they are located. Comparable to such mandates are judicial rulings, such as in Brazil, which compel tech companies to apply a removal or ban order worldwide rather than block access for local users. In August 2020, Facebook complied with a Brazilian’s judge order to block the accounts of 12 of President Bolsonaro’s supporters[mfn]The individuals were under investigation for running a fake news network.[/mfn] worldwide. Facebook stated that it complied with the order due to the threat of criminal liability faced by one of its employees.[mfn]This is not the first time that a Facebook’s employ faced criminal liability in Brazil due to the company not complying with a court order. In 2016, Diego Dzodan, Facebook’s Vice President for Latin America was jailed for 24 hours, following a disputed court order for What’s App to disclose user data for a drug-trafficking investigation[/mfn] In 2020, Facebook also had to comply with a court order to globally remove references to defamatory comments made against an Austrian politician.[mfn]And this until the injunction lasts, see: Lomas Natasha (2020), Facebook loses final appeal in defamation takedown case, must remove same and similar hate posts globally, TechCrunch.[/mfn]

Content virality and traceability requirements

Similar to India’s 2021 Guidelines,[mfn]See our dedicated entry on Pakistan in the Online Regulation Series Handbook (pp. 78 - 82).[/mfn] Brazil is considering imposing a traceability requirement to counter the dissemination of fake news in the country. Unlike in India,[mfn]In India, the traceability requirement is limited to “significant social media” and for certain investigatory or prosecution purposes.[/mfn] Brazil’s traceability requirement is contingent on the “virality” of a message (1,000 users within 15 days). However, this means that in practice platforms are to be able to trace back all messages given that any messages could become “viral”. The Electronic Frontier Foundation criticised this as an infringement on due process, as it requires tech companies to retain logs of users’ communication “before anyone has committed any legally defined offense”.[mfn]Rodriguez and Schoen (2020).[/mfn]

Furthermore, and as we raised in our commentary on the 2021 Guidelines in India, traceability requirements present major risks for online privacy and security. The technical changes that platforms must undergo in order to be able to retain information could weaken the end-to-end encryption offered by most messaging services. Tech Against Terrorism cautions any provisions that mandate platforms to modify their systems, and in particular their security protocols.