Brazil represents a major market for online platforms. It is the leading country in terms of internet use in South America, and a key market for Facebook and WhatsApp. WhatsApp’s popularity and the online disinformation campaigns that have been coordinated on the platform are essential to understand Brazil’s approach to online regulation. The messenger app has been accused of being used “for the dissemination of fake news”, whilst critics of the “fake news” bill have said that it served as a “standard” for new regulation in the country based on the app’s existing limitations on forwarding messages and group size.

Brazil’s regulatory framework:

  • Lei Brasileira de Liberdade, Responsabilidade e Transparência na Internet, the Brazilian Internet Freedom, Responsibility and Transparency Act, or Law PLS2630/2020, passed by the Senate earlier this year, and yet to be approved by the Chambre of Deputies before being signed into law by President Bolsonaro.
    • The law is meant to counter the spread of misinformation online and would oblige messenger apps to implement measures to ensure the traceability of messages shared, as well as compel tech platforms to monitor inauthentic behaviour.
  • Marco Civil da Internet (MCI), also known as the Brazilian Internet Bill of Rights, 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.”[1]
    • The bill underwent a long process of discussions and reviews, involving individuals, organisations, tech platforms, and other governments between 2009 and 2014.
    • The MCI makes Brazil one the largest countries in the world where the “democratic norm of equal access to information online” is inscribed in its Civil Code.
  • Lei nº 13.260, de 16 de Março de 2016, Brazil’s Anti-Terrorism law, 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.

Key takeaways for tech companies:

  • 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.
  • Defamation has been used as a basis for judicial authorities ordering removals of online content.
  • Violations of electoral laws have also been used as a motivation for removal orders.
  • The “Fake News Bill’, once passed into a law by Presidential decree, would have major consequences for online platforms, especially encrypted messaging services, by imposing:
    • Traceability requirements for messaging services: messaging apps would be required to store the logs of “broadcasted messages”, meaning messages sent by more than 5 users and reaching a least a 1,000, for three months .This requirement is linked to a “technical capability directive” for platforms to be able to trace back individual messages.
    • Reports of “automated or inauthentic accounts”, or the reception of a court order, would require online platforms to confirm the identify of their users.

A misinformation problem

Brazil has, in recent years, seen significant spread of dis- and misinformation on social media, in particular during the 2018 Presidential elections and the Covid-19 crisis. The debate around fake news and online platforms in Brazil has particularly focussed on WhatsApp, the most popular messaging app in the country, on “malicious coordinated action” to spread misinformation on the app, and on how to counter this via traceability requirements.

Judicial authorities in Brazil have the power to order the removal of certain content and blocking of accounts on the basis of defamation or violations of election laws. This is one of the most important exceptions to the tech companies’ protection from legal liability for user-generated content granted by the MCI. Just this August, Facebook was forced to comply with a Supreme Court removal order, for accounts spreading false information about Brazilian judges. The company did so in part to prevent one of its employees from facing potential criminal liability. The company was nonetheless fined around $368,000 for not blocking the accounts worldwide.[2]

Brazilian Internet Freedom, Responsibility and Transparency Act: towards a new framework to tackle fake news

Beyond judicial orders for account and content removal, Brazil vowed to tackle its misinformation problem with a so-called “fake news” bill: Law PLS2630/2020, or the Brazilian Internet Freedom, Responsibility and Transparency Act. If signed, the law could bypass some of the principles set out in the MCI, in particular by making companies legally liable for content published on their platforms, and thus acting as “a powerful incentive to limit Brazilians’ freedom of speech [at a time of political unrest].”

The initial proposal included substantial provisions on data retention for messages that would have met a “virality threshold” of being forwarded by more than 5 users to 1,000 users within 15 days, as well as a requirement for tech companies to verify the identity of their users. These original requirements were amended in the version approved by the Senate, however, the bill will still impose important traceability and monitoring obligations on tech platforms in order to detect bot accounts and inauthentic behaviours that spread fake news.

The requirement to retain chains of communications, for instance, is still present in the current version of the bill, though limited to “private messaging applications” and onlyrequiring companies to store the logs for three months. This requirement has been criticised by the Electronic Frontier Foundation (EFF) for imposing a “tech mandate” on messenger apps that would weaken privacy protections by compelling them to retain important chain of communications. Attached to that is the requirement for messaging apps to limit the size of their private groups and lists. A limitation that WhatsApp already implements and that has led some commentators to criticise the bill for creating a “standard based on WhatsApp” for its group size limits and limitation on forwarding messages. 

Although the current version of the law has removed the requirement for “large” social media and messaging apps to collect users legal identification information (national identity cards) to use their services, platforms “may” still be required to confirm users identify following “reports of non-compliance with the fake news law, evidence of automated or inauthentic accounts, or upon court order”. With the threshold for what constitutes such reports being unclear, civil society organisations, including the Center for Democracy & Technology (CDT), have expressed concerns that this would lead to “arbitrary” and “excessive” violation of users’ privacy and right to freedom of expression. Tech companies will also be required to ensure that their services are not used for inauthentic behaviour and develop the necessary “technical means” to do so. The monitoring of such “inauthentic behaviour” and the technical means it will require have been criticised by the CDT on the grounds that the law “is unclear and poses a potential threat to online privacy and security.”

The EFF has also criticised Article 37 of the law, which requires platforms to appoint a representative in Brazil and ensure that users databases can be accessed by the staff in the country, in case they would be required to hand them over to law enforcement. Another concern raised by the EFF regards the wide application of the law beyond Brazil. Indeed, the EFF has criticised it for not being limited to online services in Brazil, but that it is said to apply at “company level” without regard for where the user is located, or their nationality.

With the laws having been criticised for the unproportionate risks it poses to freedom of expression and users right to privacy, as well as for impending innovation by compelling platforms to change how they store messages, Brazilian digital rights experts have also denounced it for failing to meet its said aim of tackling misinformation. Rolando Lemos – a Brazilian lawyer, digital rights expert and member of the Facebook Oversight Board – has criticised it for focusing too much on content and failing to counter the professional networks of disinformation: “it attacks the leaves and not the root of the problem, which is the fight against those who finance disinformation campaigns in a hidden way”.

[1] The principles of universality mainly relates to ensuring the diversity of internet users and “spurring innovation”

[2] Twitter was also ordered to take down accounts, and complied with the order whilst saying it would be appealing it.

Resources:

AccessNow (2020), Brazil Congress moving forward disinformation bill that brings free expression and privacy harms to new levels.

Al-Jazeera (2020), Facebook bows to Brazil court order, bans pro-Bolsonaro profiles.

Arnaudo Daniel (2017), Brazil, the Internet and the Digital Bill of Rights: Reviewing the State of Brazilian Internet Governance, Igarape Institute

Counter Extremism Project, Brazil: Extremism & Counter-Extremism.

Garcia Tsavkko Raphael (2020), Brazil’s “fake news” bill won’t solve its misitionformation problem

Isaac Mike and Roose Kevin (2018). Disinformation Spreads on WhatsApp Ahead of Brazilian Election, The New York Times.

Human Rights Watch (2015), Brazil as the Global Guardian of Internet Freedom?

Fleischmann Do Amaral Isabela (2020), What is the proposed fake news regulation in Brazil and how does it affect social media in the country?, LABS

Freedom House (2020), Freedom on the Net: Brazil.

Lima Rafel (2020), Misinformation campaigns escalate during Covid-19 pandemic in Brazil.

Lyons Kim (2020), Brazil Supreme Court orders Facebook to block accounts of several Bolsonaro allies, The Verge.

Maheswar Namrata and Nojeim Greg (2020), Update on Brazil’s Fake News Bill: The Draft Approved by the Senate Continues to Jeopardize Users’ Rights, Center for Democracy and Technology.

Rodriguez Katitza and Schoen Seth (2020), FAQ: Why Brazil’s Plan to Mandate Traceability in Private Messaging Apps Will Break User’s Expectation of Privacy and Security, Electronic Frontier Foundation.

Rodriguez Katitza and Schoen Seth (2020), 5 Serious Flaws in the New Brazilian “Fake News” Bill that Will Undermine Human Rights, Electronic Frontier Foundation.

Saraiva Augusta (2020), Tackling Disinformation in Brazil, Foreign Policy

Uchoa Pablo (2020), Brazil coronavirus: ‘Our biggest problem is fake news’, BBC News.