Definition of who will fine big techs can be an obstacle – 04/16/2023 – Politics

The discussion on the creation of a body to supervise and fine social networks —and on how it would be— is one of the challenging points in the regulation of platforms, a topic addressed in PL 2630, which was initially known as PL of Fake News.

At the end of March, the Lula government (PT) sent a text version to the bill’s rapporteur, federal deputy Orlando Silva (PC do B-SP). The idea is that the suggestions are incorporated into the project —especially the enforcement of obligations related to harmful and illegal content.

As the text should create a series of obligations for companies, including adoption of procedures and presentation of reports, one of the main issues is to define who will be responsible for analyzing and deciding whether or not there is non-compliance with the rules.

The government’s text states that the “Executive may establish an autonomous supervisory entity” and that it “must have guarantees of administrative autonomy and independence in the decision-making process”, in addition to having formal spaces for multisectoral participation. Among the tasks of the entity would be the inspection, the application of sanctions and the regulation of points of the law.

Even if a consensus is reached on assigning oversight to a body outside the Judiciary, the format and composition of the entity should be the subject of debate. A first point should be to decide whether the task would fall to a new body or an existing structure.

Because it was proposed by the Legislature, however, PL 2630 cannot establish the creation of a new body, which is only the responsibility of the President of the Republic, as provided for in the Constitution. That is, even if the project says that some of the competences must be exercised by a new body, its creation would depend on the government sending such a proposal to Congress.

Critics of the government’s text in this respect consider that it does not indicate the real intention of the Executive between these paths.

The text that will actually be valid in the discussion of PL 2630 in the Chamber of Deputies will be the new substitute for Silva, which is being sewn together with leaders.

The deputy understands that there is no way not to determine a body to supervise and apply fines and points out that the creation of entities is the exclusive competence of the Executive. “It seems to me inescapable the determination of a body that has the attribution of supervising compliance with the law and applying sanctions”, said Silva to Sheet.

“I think that the most correct thing would be to create a specific body, with technical capacity, that has some autonomy, and preferably dialogue with the trajectory of coordination of the internet in Brazil, which has the Internet Steering Committee [CGI.br] a good experience”, he says.

Ivar Hartmann, professor at Insper and doctor in public law, sees the project proposed by the government as a whole as positive.

According to him, as the text focuses on the creation of procedural rules, such as the presentation of transparency reports and risk analysis, it is important to foresee an entity for supervision with specialized knowledge.

“From the moment you do that, you have to think about the effectiveness of those rules,” he says. “And therefore it is crucial that there is an autonomous entity with expertise to assess compliance with these rules of procedure”. He considers, however, that the Judiciary would have the capacity to evaluate part of the obligations.

One of the entity’s points of analysis would be whether the platforms would be fulfilling the “duty of care” to curb the circulation of illicit content. The fine would be applied in case of widespread non-compliance with obligations, not for the content of specific posts.

The Coalition Rights on the Network, which brings together more than 50 academic and civil society organizations, released a note on Wednesday (12) criticizing the Executive’s text, defending the creation of a new body in the indirect federal administration, with functional autonomy, financial and administrative and with social participation. They also argue that the Judiciary should act.

Researcher Bruna Martins do Santos, who is part of the coalition, points out that one of the fears is that the newsroom will open a loophole for spaces that already exist in public administration to gain competences, even if temporarily until an eventual new body is created.

According to Secom’s Secretary of Digital Policies, João Brant, the text is clear and explicit, and going further would be a vice of initiative.

He considers that, as stated in the text, the government sends a positive signal by establishing that the entity needs to be autonomous and independent, with multisectoral participation, and that the government intends to listen to society about the format.

Lawyer Patrícia Peck, specialist in digital law and counselor at the National Data Protection Council, points out that the Executive’s text brings positive points, but she has reservations about the wording about the entity.

“The big debate is: how the autonomous supervisory entity will be formed, from the point of view of its autonomy and political independence. Because it is not clear what its composition will be”, she evaluates.

“The autonomous entity can become such a big point of discussion that it can even make the rest of the PL process unfeasible, the points that were already well resolved.”

Peck argues that it would be better to take advantage of existing structures.

Laura Tresca, social scientist and titular councilor of CGI.br, considers that the creation of a new body allows the subject not to be treated in a biased way, according to the area of ​​activity of existing bodies.

As negative points, she cites the financial difficulty and the time it would take. In this sense, she considers it a possibility to involve regulatory agencies already formed, such as ANPD (National Data Protection Authority) and Anatel (National Telecommunications Agency), for example.

In the context of the operation that seeks to combat content that advocates violence in schools, the Minister of Justice, Flávio Dino, signed an ordinance establishing rules for platforms on this topic. Senacon (National Consumer Secretariat) was assigned the task of initiating an administrative process to investigate and hold big techs accountable in this regard.