PL 2630: OAB proposes regulatory body for platforms – 05/13/2023 – Power

The OAB (Order of Lawyers of Brazil) sent this Saturday (13) a letter to deputy Orlando Silva (PC do B-SP) proposing the creation of a regulatory system to supervise the application of the new internet regulations provided for in bill 2630, the PL of Fake News.

The regulatory body is one of the most controversial points of the project reported by Orlando. The deputy removed from the text of the PL the provision for the Executive to create an autonomous supervisory entity in the face of criticism from the opposition, who saw the danger of government interference and of the body acting as a censor.

But the deputy has already admitted that it is impossible to apply and supervise the law without having an independent entity responsible.

The proposal of the special commission on Digital Law of the federal council of the OAB, obtained by Sheetprovides for a tripartite system to implement the law.

A digital policy council (CPD) would oversee compliance with the legislation by analyzing the systemic risk and transparency reports periodically published by the platforms, in which companies will detail how they tried to mitigate and acted in relation to illegal content. The CPD, based on this, could impose fines on the platforms.

The council would be composed of members appointed by the Executive, Legislative and Judiciary Powers, and representatives of Anatel (National Telecommunications Agency), Cade (Administrative Council for Economic Defense), ANPD (National Data Protection Agency) and the federal OAB.

A self-regulatory entity composed of representatives of the platforms themselves would be in charge of content moderation, helping to decide which posts potentially violate the law and should be removed.

“In this way, the State would have no role in deciding on specific content on platforms”, explains Laura Schertel Mendes, president of the special commission on Digital Law at the OAB. “And the CPD could not punish companies for specific content, it would make an analysis of general compliance with the law’s guidelines.”

The third pillar of the tripartite platform regulation system would be the CGI.br (Brazilian Internet Management Committee), which would carry out studies and publish guidelines and recommendations for the platforms’ codes of conduct.

“Without the existence of an organ, it would be impossible to apply the law, which would be subject to specific judicial discussions”, says Mendes.

There is a lobby by Anatel and the MDB for the agency to become the regulator of platforms and be responsible for law enforcement. But civil society is against it, because it sees Anatel as an entity captured by the interests of the big telecommunication companies and without competence to act in the regulation of platforms.

For some parliamentarians, the bad image that part of consumers has with regard to the inspection of services provided by telecommunications operators also weighs against the agency. For them, if Anatel cannot even fulfill the role it currently has, it would be even more difficult to absorb new attributions.

“The system proposed by the OAB is a solution that produces coordination and more harmony between agencies and the Powers, which is very necessary nowadays”, says Francisco Brito Cruz, executive director of the Internet Lab. “It’s the most fruitful path that has ever appeared, because it gives everyone a role and treats the matter as a state policy, not a government one.”

For Ricardo Campos, executive secretary of the OAB commission, the proposal has two positive points: “it is an option to Anatel and introduces regulated self-regulation, an institute already established in Germany and Europe.”

However, according to Campos, “there would be a learning curve necessary for the training of technical staff, structural apparatus, which could be avoided with the extension of competences of the body that regulates the telecommunications infrastructure”.

The proposal has the support of a large part of civil society and specialists in digital law, and will be analyzed by Orlando Silva, the proposal’s rapporteur.

The text addresses criticisms of possible excessive government interference in law enforcement. “The implementation of a truly democratic system of governance of the digital public sphere should not concentrate decision-making power in a single actor. On the contrary, it is necessary to encompass representatives of the various segments involved (users, regulatory agencies, civil society, academia, companies and the Executive, Legislative and Judiciary powers), within the scope of a system of checks and balances”, says the letter.

The regulation system provides that the CPD will also determine when the so-called “safety protocol” on the platforms should be activated — a period of 30 days in which, in the face of the verification of any imminent danger or negligence of the platform, it can now be held responsible in court, if it fails to remove any illegal content on a given topic after being notified.

The proposal states that the creation of the CPD will not imply an increase in expenses, as commission positions and trust functions would be transferred from other bodies.

The board could also periodically require external and independent audit of providers to assess compliance with the so-called “duty of care” – the obligation to prevent and mitigate the dissemination of illegal content generated by third parties.