Bill of Fake News: immunity of politicians can undermine law – 04/29/2023 – Power

The prediction of parliamentary immunity in the Fake News Bill may make it even more difficult to combat disinformation on social networks, experts say.

In general, they point out that the STF (Federal Supreme Court) in recent years has relativized the scope of this right, which can minimize the damage caused by the measure.

Some scholars, however, consider that the prediction may lead to inaction on the platforms in relation to congressmen and serve as an argument in the Judiciary for disseminators of lies with a seat in Congress.

Immunity is provided for in Article 33 of Bill No. 2.630/2020.

Known as the Fake News PL, he had urgency in the procedure approved in the Chamber of Deputies last Tuesday (25). With that, it will not need to go through committees in the House and, if approved in plenary, goes straight to the Senate.

The project says that parliamentary immunity “extends to content published by political agents on platforms maintained by social network and private messaging providers”.

The text refers to Article 53 of the Constitution, which provides that “deputies and senators are inviolable, civilly and criminally, for any of their opinions, words and votes”.

The PL also lists as “accounts of public interest” those of presidents, governors, mayors, parliamentarians of all spheres, ministers, state and municipal secretaries, and leaders of indirect administration entities, such as autarchies.

Holders of these accounts will not be able to restrict the reach of their posts by blocking critics, for example. But they will be able to file a lawsuit in case of “decisions by providers that constitute illicit or abusive active intervention” and, in these cases, the Judiciary can force platforms to restore accounts within 24 hours.

“It’s very disturbing because it increases the power of those in power and diminishes that of those under tutelage”, says Ronaldo Lemos, director of the Institute of Technology and Society of Rio de Janeiro and columnist for Sheet.

He recalls the decision of platforms like Twitter to suspend the account of then President of the United States Donald Trump, still in office, at the risk of inciting violence, in the wake of the invasion of the Capitol.

In Brazil, he says, platforms would be inhibited from taking similar measures in view of what is foreseen in the proposal.

“It’s a project that wants to fight fake news, but says it has a class of individuals who can make fake news at will.”

The dissemination of disinformation by political agents gained even more relevance after the coup attacks on January 8, when accounts by Bolsonaristas such as Carla Zambelli (PL-SP) and Nikolas Ferreira (PL-MG) were suspended by order of Alexandre de Moraes, Minister of the STF and the TSE (Superior Electoral Court).

The suspension derived from an understanding that has been consolidated by the Supreme Court, according to which parliamentary immunity is not absolute. It would apply only to speeches related to the political mandate —it would therefore not include attacks on the integrity of elections, for example.

Bia Barbosa, a member of the DiraCom – Direito à Comunicação collective, believes that, as it is written, the article does not prevent platforms from acting, but can be used as an argument in lawsuits.

She is also part of the Rights Coalition on the Network, one of the hundred civil society organizations that sign a document that defends the regulation of platforms, but makes reservations about some points of the project.

Gathered in the Articulation Room against Disinformation (SAD), the entities are against the suspension of accounts of holders of mandates by decision of the platforms, but defend that their publications should be subject to the same content moderation rules of all users .

In another note about the project, researchers from the research group Constitutional Democracy, New Authoritarianisms and Digital Constitutionalism, from the IDP (Brazilian Institute of Education, Research and Extension), suggest modifying the wording of the PL paragraph on immunity.

They propose an addition so that the text goes on to say that “material parliamentary immunity, when exercised within the limits of the democratic rule of law, extends to platforms maintained by social network application providers”.

For one of the signatories, lawyer Ilton Norberto Robl Filho, the Judiciary must continue to apply its understanding regardless of the new law, but the wording as it stands may leave a gap.

Author of “Freedom of Expression and Democracy in the Digital Era” (ed. Forum, 2022), lawyer Luna Van Brussel Barroso highlights the STF’s understanding that immunity is not absolute.

She assesses that the only scenario in which the bill’s article would guarantee greater protection to congressmen than to other users would be if the speech was protected by parliamentary immunity, but violated the terms of use of the platforms.

Even so, he ponders, something protected by parliamentary immunity would hardly violate the terms of use. Even if that were to happen, he considers that “the choice for parliamentary immunity also has an important democratic component”, so it would not be so problematic for it to prevail over the platforms’ rules.

In a recent interview with GloboNews, the rapporteur for the Fake News PL, Deputy Orlando Silva (PC do B-SP), defended the device, stating that parliamentary immunity is a democratic achievement and that, in the event of a crime, the Judiciary can be triggered.

Professor at USP, specialist in digital law and partner at the Opice Blum office, Juliano Maranhão points out that the forecast of the subject in the law is revealing of the context of disinformation in Brazil.

“What the developed countries assume as a premise is that the source of disinformation is not the authorities”, he says.

It is not just parliamentary immunity that causes controversy in the bill. In concession to the evangelical bench, the rapporteur included in the text the endorsement of the “full exposition” of dogmas and sacred books, as well as the free expression of cults.

Another point that causes divergences is the remuneration of platforms for journalistic content in a trading system similar to that foreseen in Australia.

The platforms are opposed to the idea, and there is dissent among the vehicles. Entities such as Abert (Brazilian Association of Radio and Television Broadcasters), Aner (National Association of Magazine Editors) and ANJ (National Association of Newspapers), which brings together the main media outlets, including Sheet, defend the PL; Smaller vehicles fear losing funding because they have less bargaining power.

Understand the PL of Fake News

Which project to combat fake news should be voted on?
The PL was originally proposed by Senator Alessandro Vieira (PSDB-SE) and now should incorporate suggestions from the Lula government, the rapporteur Orlando Silva (PC do B-SP) and the working group set up by the president of the TSE (Superior Electoral Court), Minister Alexandre de Moraes

What are the main points of the original project?
The project includes the duty of platforms to veto inauthentic accounts, the obligation to disclose transparency reports on content moderation and a fine of up to 10% of the economic group’s revenue in Brazil in case of non-compliance with the law

What points should be included in the House vote?
Punishment of big techs for content that violates the Democratic State Law, responsibility of platforms for boosted content, transparency of content algorithms and remuneration of journalistic content by platforms should be included in the project

What should be the procedure of the PL?
Orlando Silva filed a final report on the proposal on Thursday (27). The expectation is that the merit will be voted in plenary next Tuesday (2), since the project is being processed in an urgent regime, without going through committees. Afterwards, it must be evaluated again by the Senate, which had approved the original text in 2020, to then follow the presidential sanction.

What do the platforms say?
Meta, Twitter, Google and TikTok ask for the creation of a special commission to deal with the topic. Criticize the accountability of platforms for third-party content, which could lead to “private censorship”

How would remuneration for journalistic content work?
Newspaper companies would negotiate directly with big techs the payment for the content and, if they do not reach an agreement, there would be arbitration. The model follows the News Media Bargaining Code, adopted in Australia in 2021

Is this compensation proposal consensual?
The platforms are opposed to the idea, and there is dissent among the vehicles. Entities such as Abert (Brazilian Association of Radio and Television Broadcasters), Aner (National Association of Magazine Editors) and ANJ (National Association of Newspapers), which bring together the main media outlets, including Sheet, defend the PL; smaller vehicles fear losing financing because they have less bargaining power

What are the other controversies surrounding the proposal?
To overcome resistance in the Chamber of Deputies, rapporteur Orlando Silva removed from the text the creation of a regulatory agency to supervise the platforms and made explicit the free exercise of religious cults and the “full exposure” of their dogmas and sacred books