Government wants to punish big techs for coup-like content – 03/11/2023 – Power

The Lula government should submit its proposal for internet regulation to the National Congress next week. It includes punishments for big techs for violations of the Democratic State Law and the rights of children and adolescents, in addition to requiring algorithmic and online advertising transparency.

The text will be forwarded and discussed with Deputy Orlando Silva (PC do B-SP), rapporteur for the Fake News PL. The idea is to incorporate the government’s proposals into a simplified version of the deputy’s project, which has been in the pipeline for three years, but there are important differences.

President Luiz Inácio Lula da Silva (PT) does not accept the measure that would give immunity to parliamentarians on social networks. However, the mayor, Arthur Lira (PP-AL), does not give up shielding. Immunity was one of his campaign promises for re-election to the presidency of the Chamber of Deputies.

Two other points of the bill generate controversy: the measure that provides for payment for journalistic content by platforms and the one that imposes rules on online advertising.

The government’s proposal institutes civil liability for platforms for content that violates the Law of the Democratic State 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 text also prohibits content that violates the Child and Adolescent Statute (ECA) even before a court order. In the case of the ECA, there is already a legal precedent for decisions along these lines.

The proposal eases the immunity granted to companies by the Marco Civil da Internet, the main law that regulates the internet in Brazil. Sanctioned in 2014, it determines that platforms can only be held civilly liable for third-party content if they fail to comply with court orders for removal.

According to the government’s text, platforms would only be held responsible if they were aware of illegal content and did not act. It is the so-called “notice and action” that is in the Digital Services Law that has just entered into force in the European Union.

The platforms would need to have an easily accessible reporting channel. When they received reports, they would have to review them and decide whether the content violates the law and should be removed. If they fail to act and the content is found to be illegal, they could be held liable.

Every six months, companies would have to publish a report on the so-called “duty of care”, specifying complaints about allegedly illegal content, removals of posts that violate the law and mitigation measures for this. The reports would undergo an independent audit.

Companies would not be punished if they missed one or another illegal content, they would only be fined if there was widespread non-compliance with the “duty of care”.

There is no consensus in the government on the creation of a regulatory body to evaluate the reports.

The text does not include specific details of content that violates the law. In this way, it would be up to the platforms to interpret the legislation and determine what should be taken off the air. Experts worry that this could lead platforms to remove excessive content to avoid liability.

There is still a demand from the Ministry of Human Rights to expand the scope of the law to cover hate speech, but there is no agreement in the government.

The text also determines algorithmic transparency. With that, the platforms would have to explain why users receive certain recommendations and how the system works that determines what Internet users see and what they fail to see.

One controversial measure is the one that requires prior consent from users so that apps can track them for use by advertisers. The measure is similar to the privacy rule adopted by Apple on its devices in 2021, which resulted in a drop of about $ 10 billion in invoicing for apps like Facebook, Instagram and Twitter.

At the same time, two other fronts can influence the new internet regulation in the country.

The STF (Federal Supreme Court) will hold a public hearing on March 28 to debate two extraordinary appeals that may change the Marco Civil.

In the appeal reported by Minister Dias Toffoli, a woman asked Facebook to remove a fake profile that pretended to be her and offended several people. Facebook declined to act. She asks for the overthrow of the profile and compensation for moral damages.

In the other feature, reported by Minister Luiz Fux, a teacher asked Orkut (which was bought by Google) to take down a community that had criticized and offended her. She was not answered, and asks Google, in addition to removal, compensation for moral damages.

A decision in any of these cases would have general repercussions and could set a precedent to hold platforms civilly liable for not removing content before there is a court order. Within the government and in Congress, there is the expectation that a decision by the STF will provide parameters that will speed up the discussion of regulation.

In addition, Minister Alexandre de Moraes, as president of the Superior Electoral Court, set up a working group with representatives from Google, YouTube, Facebook, Instagram, WhatsApp, TikTok and others to discuss guidelines for self-regulation. The report with proposals will be forwarded to Congress at the end of next week.