Debate on punishment of big techs has Brazil at the epicenter – 02/24/2023 – Politics

Brazil is at the center of the global dispute between supporters of new internet laws to punish platforms for illegal content and those who see this regulation as the end of freedom of expression on networks.

At a UNESCO conference that discussed guidelines for regulating networks this week, it became clear that there is only consensus on the need to regulate the internet – everything else generates controversy.

On one side of the trench, some NGOs defending freedom of expression, platforms and experts such as David Kaye, former UN special rapporteur on the subject, warn that punishing platforms for third-party content, as the legislation under discussion intends to do by the Brazilian government, will lead companies to remove excessive posts and will end up being self-censorship. They also claim that governments will use UNESCO guidelines to legitimize authoritarian laws against fake news in order to silence opponents.

Nobel Peace Prize laureate Maria Ressa, UNESCO, European and Brazilian authorities and part of NGOs think that without holding platforms accountable for certain illegal content, they will continue without making an effort to remove content that incites violence that helped to cause the attacks. January 8 in Brazil and January 6, 2021 in the US Capitol, in addition to the genocide of Rohyngia Muslims in Myanmar.

Minister Luís Roberto Barroso, of the STF (Supreme Federal Court), was in the second group by defending the accountability of internet platforms before a court order in cases of content that are incitement to crimes, terrorism and child pornography. This, in practice, would be a relaxation of the Marco Civil da Internet.

Marco Civil, from 2014, is the main law that regulates the internet in Brazil and determines that platforms can only be civilly liable for third-party content if they do not comply with court orders for removal.

For Barroso, companies should have the duty to act even before a court order in cases of illegal posts, including content that violates the law of the democratic rule of law, which prohibits requests for the abolition of the rule of law, encouragement of violence to overthrow the government or incitement of animosity between the Armed Forces and the Powers.

The measures currently under discussion in the Brazilian government, which may be incorporated into bill 2630, the PL das Fake News, follow the same line.

A similar debate is underway in the United States, where section 230 of the Communications Decency Act of 1996 states that platforms cannot be held responsible for third-party content, except in the case of child pornography.

At the time, it was necessary to create this immunity, otherwise there would be no way for social networks to prosper – they could be sued for any content posted by third parties. Now there is an oligopoly of gigantic companies, more powerful than many governments.

This issue is under review by the US Supreme Court in the Gonzalez v Google case, in which the family of a young woman killed in a terrorist attack in Paris wants YouTube to be held responsible for the death, because its recommendation algorithm suggested numerous videos of extremism that could have radicalized the terrorists.

The argument is that YouTube, per section 230, is not responsible for third-party terrorist content — but the recommendation algorithm is authored by Google, so the company could be held liable.

Unesco guidelines emphasize the need to deal with content that is illegal and that poses a threat to democracy and human rights, contrary to the current version of PL 2630, while guaranteeing freedom of expression and access to information.

“The conference shows a turning point, an urgent call to rethink current legislation. In the wake of attacks on journalists, as in the case of Maria Ressa, on minorities, in Myanmar, and on democracy, as occurred in Brazil, it became clear how the structure platform incentives reward misinformation and hatred, not the facts and integrity of information. This can have dire consequences for individual rights and our democracy”, says Laura Schertel Mendes, president of the OAB digital law commission and researcher senior at Goethe University. “We need to find the fundamental balance of taking care of illegal content, but based on the law, proportionality and freedom of expression.”

She says she believes that PL 2630 does not address many of the issues suggested by Unesco.

In line with some ideas in the Brazilian executive’s mind, these Unesco guidelines generate resistance on the part of defenders of freedom of expression.

Article19 said it had “serious concerns” about the guidelines and urged UNESCO not to propose the rules to countries, saying they “could be used by governments around the world to justify repressive measures”.

The entity is against any relaxation of Marco Civil or section 230. “We do not want to give even more centrality to platforms, which will have more incentives to decide what type of content to remove”, says Paulo José Lara, Digital Rights coordinator at Artigo19.

David Kaye thinks that existing human rights laws would do a lot of work and that UNESCO should rethink the need and urgency of publishing guidelines.

However, without specific laws, companies will remain exempt from most punishments because of the immunity conferred by laws such as Marco Civil and section 230.

The Ministry of Justice proposal, which should be incorporated into the Fake News PL, provides for accountability and proactive removal of content by platforms. However, it does not establish that companies would be civilly liable for certain posts in violation. Platforms would only be fined if there was widespread non-compliance with the “duty of care”.

They are similar to measures envisioned in the DSA, European legislation adopted this month, and the Online Safety Act, pending in Parliament in the UK.

“Considering the reality in Brazil today, it is not possible to continue thinking that it is possible for platforms not to have any type of responsibility for the content”, says Bia Barbosa, member of the Coalition Rights on the Network.

“Ten years ago, when the Marco Civil came into force (2014), it was completely different; today, with the use that extremists and authoritarian governments make of platforms, it is not possible to say that companies cannot be held responsible for this content.”

The issue, says Barbosa, is how to regulate. She argues that Brazilian law defines in a very specific way what type of content platforms need to take down. First, if the company profits from this content, it has to be held accountable, he believes.

“There are lives on YouTube asking for a coup d’état and being monetized, ads that violate rights; if there is a crime, platforms, in addition to the authors, may be punished.”

For her, there is no point in leaving the platforms to interpret the law of the democratic rule of law and decide how they will moderate content. “We need a specific law for the digital environment, defining in a very concrete way what constitutes an attack on democracy.”

And, for her, it is necessary to have an independent regulatory body that will monitor whether the platforms are diligently implementing their rules, but without violating freedom of expression. This body needs to have representatives from all sides of society, it cannot be just the government. The same measure is included in the Unesco guidelines.

In the Brazilian government, however, there is no consensus on the format and the need to create a regulatory body that would determine whether the platforms fulfilled their duty of care and, if not, should be fined.

One wing points out that addressing content is necessary, but not sufficient. Regulation should address the business model of platforms, the incentives for companies to amplify content that generates more engagement, which is usually the most extreme or polarizing.

This, however, does not solve a central problem – today, the biggest disseminators of incitement to violence are politicians and heads of state like Donald Trump and Jair Bolsonaro. They have accounts with millions of followers – they don’t need bots, micro-targeting or automation to amplify their messages.

“If there is a gradation of the Marco Civil, we need safeguards so that there is no undue removal of content, such as the right to appeal decisions, for example”, he says. “But it’s worth questioning why the Marco Civil has exceptions in cases of non-consensual intimate images and copyright, but not for other very serious things.”

According to Guilherme Canela, head of Unesco’s area of ​​freedom of expression and journalists’ safety, freedom of expression must be seen in a comprehensive way – freedom not only to express oneself, but also to seek and obtain information.

“When we are inundated with misinformation and hate speech, it threatens our right to seek and receive information. There has to be a balance between the right to free expression and other rights. Some speech threatens people’s lives.”

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Understand what’s up for debate

What is the debate about the regulation of social networks? Under the impact of the coup acts of January 8, the Lula government prepared a proposal for a provisional measure that obliges networks to remove content that violates the Democratic State Law, with incitement to a coup, and a fine if there is widespread non-compliance with obligations. Faced with resistance from Congress, Planalto backed down and discusses including these measures in PL 2630, the so-called PL for Fake News.

What is the Civil Rights Framework for the Internet? It is a law with rights and duties for the use of the internet in the country. Article 19 of the framework exempts platforms from liability for damages generated by third-party content, that is, they are only subject to paying compensation, for example, if they do not comply with a court order of removal. The constitutionality of article 19 is questioned in the STF.

What is the discussion about this article?The rule was passed with a view to ensuring freedom of expression. One justification is that networks would be encouraged to remove legitimate content for fear of being held accountable. On the other hand, critics say the rule discourages companies from tackling harmful content.

Does the government’s proposal impact the Marco Civil?The understanding is that the project will make one more exception in the Marco Civil. Today, companies are required to remove non-consensual nude images even before a court order. The government wants scamming content to also become an exception to the immunity granted by law, but companies would not be subject to fines if one or another violating content was found on the platform.

How does it work in other countries?

• USA:The legislation makes platforms immune to third-party content, and also does not hold companies accountable if content is removed in good faith. The text was created to prevent social networks from being sued for any content posted. Now, projects and actions in court discuss expanding the responsibility of the platforms.
• European Union: The 2000 EU e-commerce directive establishes that networks can only be held responsible for third-party content if they know of its existence and do not remove it, that is, it is only necessary to withdraw the publication, for example, if you receive a report a user and not take action. The digital services law, effective as of this month, maintains this immunity, but establishes a series of obligations that must be fulfilled by platforms, such as transparency reports, and demonstration of removed harmful content.
• UK: Companies cannot be punished for damage caused by third-party content. A pending proposal states that platforms will have a “duty of care” to remove illegal content even before receiving complaints. Companies need to ensure that their own terms of use apply. And users have the right to appeal moderation decisions.