Lula government plan against fake news generates divergence – 01/20/2023 – Politics

Under the government of Luiz Inácio Lula da Silva (PT), the scenario is drawn that the Executive bodies must act proactively and even judicially against misinformation about public policies.

Decisions on possible punishments would remain the responsibility of the Judiciary. The novelty would be, for example, in a performance by the AGU (Advocacia-Geral da União), a body that legally represents the government, to file legal representations against those it sees as authors of lying content.

The position of experts consulted by the Sheet about this performance was not consensual. Most point out that an action, in this sense, by the government can set a precedent that represents a risk to freedom of expression, given the possibility of being instrumentalized for judicial harassment against critics and opponents.

On the other hand, there are those who understand that, given a context of slowness and inertia by the PGR (Union Attorney General’s Office) and a moment of great political instability and risks to democracy, the adoption of this type of innovation would be appropriate and proportionate.

In a decree with the structure of the new government, a Prosecutor for the Defense of Democracy of the AGU was created. Among its competences, the judicial representation of the Union was included “in demands and procedures for responding and confronting misinformation about public policies”.

There are still a series of uncertainties about how the unit will act and what its structure will be. There is also no definition of when it will actually start working. The decree that created the unit takes effect on January 24. After that, its internal regulations will be presented, which will still undergo public consultation. Only then will the Prosecutor for the Defense of Democracy begin its work.

In an interview with Sheet published this Thursday (19), the chief minister of Secom (Secretary of Communication of the Presidency), Paulo Pimenta, stated that fake news accusing the government of having committed “untrue criminal facts” will be forwarded to the AGU and to the Ministry of Justice , so that the people who produced the misinformation are identified and accountable for it.

“What we are going to do is identify what is a lie, respond and forward it. Depending on the case, if it is a crime, for the MP, if it is misinformation, for the AGU, if it is wrong information, we will take whatever action is necessary. needed,” he said.

The minister also responded to who would determine whether or not the post is disinformation, stating that it would only deal with objective facts and not with political or ideological content. “Let’s take an example: fake news circulated saying that Lula sanctioned a law that increases prison aid to R$ 1,764. This is a lie, there is no such law”, he explained.

In general, the experts heard by the report pointed out that, in the case of online content identified as being crimes, provoking the Judiciary would depend on the Public Ministry. That is, the AGU could not file a complaint directly with the court, but could send the data to the Public Ministry —which includes the PGR—, which would then be responsible for filing a complaint with the Judiciary.

It is from the acceptance of the complaint that a criminal action is initiated and an investigated person becomes a defendant.

“Is it over there [AGU] cannot open an investigation, file a complaint, or play the role of prosecutor during a criminal process”, says Francisco Brito Cruz, doctor of law and executive director of InternetLab. “She can do what a lawyer can do for his client , in this case the client is the Union.”

Paulo Rená, a doctoral candidate in law at UnB, with research on the regulation of public policies in law and technology, points out what he sees as an exception. “In the case of public agents practicing disinformation, the STF is under analysis whether the AGU could also propose actions of administrative impropriety or whether it would be the exclusive attribution of the MP.”

Flávia Lefèvre, a lawyer specializing in digital rights, on the other hand, has the understanding that it is also possible for the AGU, through its Attorneys, to present a criminal complaint in a more comprehensive way. This is because, she stresses, in the organic law on the body, this limitation is not specified. “Therefore, I understand that it can be both civil and criminal matters.”

In the case of civil actions, the general understanding is that, in theory, the AGU could make a representation directly to the Judiciary, which would be responsible for deciding whether or not the request is appropriate. In this case, there is a debate about the risks that this action in the context of combating the so-called disinformation can generate.

Although the item in the decree that created the AGU’s Attorney for the Defense of Democracy says that it is responsible for demands involving “disinformation about public policies”, these representations must have another type of legal basis —which could include, for example, requests compensation for moral damages, retraction or removal of content.

Brito Cruz assesses that it will be necessary to analyze case by case and sees with difficulty the possibility of arguing that there is moral damage by the State. He also points out that a definition of disinformation by the AGU would not serve as a legal parameter for judgment by the Judiciary, but as an internal use of the government body.

Yasmin Curzi, professor of human rights and researcher at the Center for Technology and Society at FGV Direito Rio, considers that the plan represents a risk to the protection of freedom of expression, both because it is vague and because it mentions misinformation, given that there is currently no definition in law of what that would be. She considers that the AGU should have, in this matter, a limited advisory and guidance role.

“You cannot sue people for misunderstanding certain news, that is to limit freedom of expression in a very abusive way”, he assesses. “I don’t think that’s the true intention of the AGU, but it opens up avenues and possibilities for other governments and malicious actors to do this,” she says.

Flávia Lefèvre agrees with the consideration that this path can revert to authoritarian measures, but considers that the country is going through an exceptional moment, given the risks to democracy, and that therefore the measure is proportional.

“These are short-term measures, to act now with what we have in hand, It is obvious that in the long term, the ideal is for us to have specific legislation”, she says, who criticizes the non-approval of the so-called PL of Fake News last year.

Rená considers that judicial harassment with such action is a possible risk, he however considers that the lack of punishment for those who produce and spread disinformation is more worrying in the current scenario. “In our recent Brazilian legal experience, the damage caused by the public power’s failure to formally defend the institutions has seemed to me a more serious problem.”