Internet: Lula’s MP raises disagreement over Marco Civil – 02/03/2023 – Power

One of the disagreements about the creation of new rules for social networks to reduce scamming content on their platforms is the impact of these measures on what is now stipulated by the Civil Rights Framework for the Internet.

Approved in the Dilma Rousseff (PT) government in 2014, the law created rights and duties for the use of the internet in Brazil. Article 19, one of the most divided opinions, returns to the center of the debate in light of the Lula government’s (PT) intention to regulate publications on social networks that fall under crimes against the democratic rule of law and terrorism.

The text that is being debated by the government has not yet been released, which prevents detailing the measures. Despite the Minister of Justice, Flávio Dino, stating that the measure will not change the Marco Civil, depending on the obligations, there is a possibility of the regime being changed, even if indirectly.

Motivated by the crisis of the Bolsonarist attacks on January 8, Lula asked Dino’s portfolio for a proposal. The wording came out as an MP (provisional measure) and is analyzed by other bodies before being forwarded to the Civil House and Congress.

Article 19 exempts digital platforms from civil liability for damages caused by content posted by third parties. This means that they are only subject to, for example, paying compensation after failing to comply with a court order of removal.

This rule was created to ensure freedom of expression and combat censorship. The intention was to prevent companies from removing legal posts for fear of being held liable. There is an exception, however, for non-consensual nudity and content that infringes copyright.

Clara Iglesias Keller, research leader in technology, power and domination at the Weizenbaum Institute in Berlin, considers that the Marco Civil regime alone is insufficient to “ensure democratic governance of content on platforms”.

“Article 19 alone is very close to self-regulation, leaving the platforms very comfortable to moderate in an opaque way”, he says.

She argues that it is necessary to deal with the issue in a structural way and that thinking only about removals and rules of responsibility reinforces the influence of private power over online conversations.

The MJ’s text is restricted and delegates to the platforms a “duty of care” to prevent the dissemination of content that violates two laws, that of the democratic State and that of terrorism, as shown by the Sheet. Big techs would be responsible for removing potentially illegal publications and would be fined in case of widespread non-compliance with this proactive moderation.

Ivar Hartmann, a professor at Insper and a doctor in public law, says that Article 19 provided protection against excessive corporate power and that the model “is not outdated”. “I think it’s outdated to think that Article 19 alone takes care of all the problems.”

In his interpretation, the prediction of punishment for repeated conduct —generalized lack of moderation (as the government may propose)— would not reverse Article 19, because it deals with specific posts (URLs).

In the opinion of Francisco Brito Cruz, doctor of law and executive director of InternetLab, the more the government’s proposal gives platforms the responsibility for interpreting and moderating potentially illegal content, under penalty of sanctions, the more it changes the model of the Marco Civil .

“The greater the margin of interpretation, whether certain content would be legal or not, the more chance that the platform will abuse it because it will be incentivized to remove it.”

The companies, which have global policies adapted to different countries, do not regulate scams directly, but incitement to hatred, terrorism and violence in general.

Paulo Rená, doctoral student in law at UnB, where he researches regulation of science, technology and innovation, says that, to combat nudity and copyright infringement, platforms are effective, but highlights the difficulty of moderating attacks on the democratic State in the face of current jurisprudence for the theme.

“The networks have some conditions to do more than they are doing”, he says. “Only people had banners on the street with the same messages [de intervenção militar] that disseminated on the networks and were not punished. Okay, the government has changed, but it is necessary to be proportional “, she evaluates.

There are those who are completely against article 19 and there is a pending decision in the Federal Supreme Court that questions its constitutionality.

Lawyer Patrícia Peck, partner at Peck Advogados and adviser to the National Council for Data Protection, is in favor of a possible revision of article 19. She argues that the scenario is very different from 2014, with greater market concentration and society’s dependence on networks social.

“I see it with good eyes because society took a big leap, we had time to assess these effects. I defend the active participation of platforms to solve side effects brought by the technology itself, which perhaps could not be seen some time ago.”

She refutes, however, a law dedicated only to curb coup and criticizes that the text comes out as an MP.

The possibility of an MP is one of the main criticisms of organizations such as the Coalition of Rights on the Network and the OAB-SP, given the length of debate it took to build the Marco Civil.

“Norms such as article 19 of the MCI are responsible for maintaining a fragile balance that protects, on the one hand, the freedom of expression of Internet users and, on the other, innovation in the sector of new technologies”, says the sectional’s note. São Paulo of the OAB, which considers removal without prior court order “highly worrying”.

If the text comes out with the prediction of “duty of care”, different experts heard also defend the possible action of an independent regulatory body, which would be composed of a technical and multisectoral body.

Understand what is up for debate:

What is social media PM?

Under the impact of the January 8 coup acts, Lula’s Ministry of Justice prepared a proposal for a provisional measure that creates obligations for social networking platforms to remove illegal content about coup and terrorism. Still under analysis by the government and without a published text, it foresees that the widespread breach of obligations would generate a fine, as shown by the Sheet.

What is the Civil Rights Framework for the Internet?

The Marco Civil da Internet created rights and duties for the use of the internet in Brazil. Article 19 of that law exempts digital platforms from civil liability for damages generated by content posted by third parties. This means that they are only liable to pay compensation, for example, after failing to comply with a court order of removal. The constitutionality of article 19 is questioned in an action pending decision at the STF (Federal Supreme Court).

What is the discussion about article 19 of that law?

The rule was thus approved with a view to ensuring freedom of expression. One justification is that platforms would not be encouraged to remove legitimate content for fear of being held accountable. On the other hand, critics say that the rule would have generated excessive judicialization, in addition to not encouraging companies and combating harmful content.

Does the government’s proposal impact the Marco Civil?

The understanding is that, even if the government’s project does not change the Marco Civil directly, the creation of obligations to platforms related to the removal of illegal content would impact the current model. This is because they would be under penalty of fines or other sanctions even without having disobeyed a judge’s determination.

Does Marco Civil resolve misinformation?

Although there is disagreement about Article 19 and about laws involving content removal, in general, experts understand that the Marco Civil alone does not deal with problems such as misinformation and extremism on networks. There is a lot of disagreement about what to do. Part of the proposals involves a broad regulation of networks. There are also those who defend the creation of a regulatory body to monitor compliance with new rules.