Lula government wants to impose obligations for big techs to reduce coup content – 01/25/2023 – Politics

The Minister of Justice, Flávio Dino, will deliver to President Luiz Inácio Lula da Silva (PT) in the next few days the proposal for a law that will make internet platforms responsible for content in violation of the Law on the Democratic State of Law.

According to the text, platforms will have a “duty of care” to prevent the dissemination of content that violates the law, that is, calls for the abolition of the democratic rule of law, encourages violence to overthrow the government and publicly incites animosity between the Armed Forces and the constitutional powers.

To fulfill the “duty of care”, companies will have to submit periodic transparency reports detailing how they removed or reduced the reach of illegal content and adopt measures to mitigate the risk of dissemination of these publications.

They will also have to remove illegal content using their own rules of use, which in many cases already ban publications that incite the coup or lie about the electoral process.

The platform will not be held civilly liable for certain posts in violation. The company will only be fined if there is widespread non-compliance with the duty of care.

The bill adopts the concept of “duty of care” foreseen in the internet regulation of the European Union, the Digital Services Act (DSA), which comes into force next month, in the Online Safety Act, of the United Kingdom, and in German network regulation.

Now, in the case of a court order to remove content that violates the Democratic State Law, the proposed law provides for rules similar to the resolution adopted by the TSE (Superior Electoral Court) ten days before the second round of the 2022 presidential election.

The resolution established a period of two hours after notification for removal of publication, under penalty of a fine of R$ 100,000 to R$ 150,000 per hour of non-compliance.

The text that was under discussion before was tougher, because it forced platforms to proactively remove content that violates the law before a court order, under penalty of fines for specific publications. As a result, the Civil Rights Framework for the Internet would not apply, which only provides for companies to be held accountable if they fail to comply with a court order to withdraw content.

The approach generated very negative reactions from internet platforms. They say they would end up removing a lot of content, in a kind of self-censorship, to avoid fines.

“Platforms publish a very large volume of content, it would be impossible to proactively detect all publications with violation and remove them”, said deputy Kim Kataguiri (União Brasil-SP), member of the Digital Front in Congress, aligned with internet platforms .

According to him, the biggest concern is the legislation, in some way, taking away the protection given by the Marco Civil da Internet. “You can’t regulate the platforms as if they were media outlets, because they don’t have control over what is published”, he says. “Platforms already have good policies in place and have invested in artificial intelligence and moderation teams.”

But surveys show that platforms have been slow to remove content that violates the companies’ own rules of civic integrity. According to the checking agency Lupa, after ten days, 76% of the scamming posts denounced by the agency are still online on the networks.

Lupa received complaints with 2,173 unique links to material that served to organize and publicize the violent attacks of January 8. The links referred to Instagram, Facebook, Twitter, YouTube, TikTok and Kwai.

On January 18, according to a survey by Lagom Data, 76% of these URLs were still online and could be accessed by anyone. Some of the videos or posts advocated the establishment of “chaos in Brazil” so that the military could intervene “by applying the Guarantee of Law and Order”.

“The duty of care is a central principle in the European internet regulation, the DSA, and it is the right way to go; among other things, it aims to ensure that platforms apply their own terms of use, their rules of moderation”, he says. Ricardo Campos, professor at the faculty of law at the Goethe Universität.

But, according to him, the legislation should also provide for an audit, as in the DSA, to monitor whether the platforms are actually complying with their terms of use.

For Campos, the fears that legislation of this type would lead to the so-called “chilling effect”, self-censorship of platforms, with negative effects on freedom of expression, are unfounded.

“The German regulation provides for a duty of care and, since it was implemented in 2017, it has not generated censorship or excessive content removals.”

For Francisco Brito Cruz, executive director of the Internet Lab, in principle, as it does not provide for accountability for specific content, the measure under study does not alter the core of the Civil Rights Framework – the main criticism of the previous version of the measure.

But, according to him, the assessment of the law depends on the set of obligations that will be imposed on platforms. “We need to see if the obligations will be more about transparency, or if they will require proactive monitoring and removal of content,” he says.

He claims that it would also be necessary to have a regulatory body to assess compliance with obligations. The United Kingdom and the European Union have specific regulators for this.

“Without knowing that, it is not possible to know whether the proposal is good or bad.”

The legislation on accountability of platforms is part of the so-called “Democracy Package”, a proposed law in reaction to the coup attacks on January 8.

The idea is that the package encompasses three bills, one to regulate social networks, another to make changes in the criminal area, one to regulate public safety in the Federal District and a PEC (proposed amendment to the Constitution) to create a National guard.