The STF’s tendency to pressure Big Techs tends to increase with Dino

Minister Alexandre de Moraes should gain an ally in the search for the regulation of social networks via the Judiciary, if Flávio Dino is authorized by the Senate to occupy a seat in the Federal Supreme Court (STF). The current Minister of Justice, in the 11 months he has been in charge of the department, has shown himself to be a defender of broad moderation of content on social media and has entered into heated clashes with Big Techs.

Lawyer specializing in freedom of expression, André Marsiglia recalls that Dino has already defended the criminalization of social networks and the speech of their users, with explicit threats to social network platforms and encouragement for government critics to be prosecuted by the State. “He was not a politician friendly to freedom of expression and I believe he will not be so as a minister of the STF”, he says.

The expert believes that, if confirmed by the Senate, Dino will be an ally of Alexandre de Moraes in the STF on these issues. Only in 2023, the magistrate blocked the profiles of parliamentarians, such as deputy Nikolas Ferreira (PL-MG), journalists, such as Guilherme Fiuza and Rodrigo Constantino, and influencer Monark, to name a few examples.

Although it cannot be said how Dino will behave, the tendency is that he will seek to act in behind-the-scenes negotiations and follow Moraes’ position. “His actions will probably be more political, behind the scenes, coordinating with the other powers the approval, for example, of PL2630 / 20 (of the fake news) and other legislation that could make free speech on social networks subject to institutional control”, says Marsiglia.

Federal deputy Marcel Van Hattem (Novo-RS) also believes that, if he actually assumes the seat on the STF, Dino will maintain his search for the “regulation” of networks to block freedom of expression.

“Flávio Dino blocks his opponents on Twitter, an attitude without support in the Constitution that requires respect for the principle of transparency by all public authorities. By denying the opposition the possibility of knowing what he says on his Twitter [agora X]already demonstrates that he has an aversion to the opposition’s actions and, as a minister of the STF, this undoubtedly tends to become more accentuated”, says the parliamentarian.

STF as an actor to ensure internet and social media regulation

In the 11 months of his tenure at the head of the Ministry of Justice and Public Security (MJSP), Dino did not shy away from providing evidence that the stance contrary to free speech can find support in the STF. In May this year, the minister stated that if PL 2630/2020, known as the PL of Fake Newshad it not been voted on, that the STF would have the means to force such regulation, either by Congress or by the Court itself.

“If Congress eventually fails to vote on the law, the Supreme Court may eventually declare the unconstitutionality of article 19 of the Marco Civil da Internet and, with that, we have a void that will occur and that will have to be filled by a regulation made, or by the Supreme Court itself, or through legal means”, he stated in an interview with the website UOL.

In fact, the possibility that the STF will intervene in the regulation of networks is nothing new. In May of this year, this was an argument that the president of the Chamber, Arthur Lira (PP – AL), used to try to convince deputies to vote in favor of PL 2630/2020.

Currently, there are two processes taking place in the Supreme Court and which could lead to changes being made to article 19 of the Marco Civl da Internet – the same one mentioned by Dino.

According to the article, technology companies can only be punished for an offensive post – paying compensation to the victim of the offense – if they fail to comply with a court order to remove that content. The objective is to protect freedom of expression and reserve the role of evaluating whether publications made by network users are illegal or not to the Judiciary.

With its review, however, the STF could determine that, in some specific situations, the platform may also respond and, therefore, be punished regardless of a court order if it maintains content on the air that encourages “anti-democratic acts”, which represent offenses or supposed threats to authorities and institutions; that disclose “facts known to be untrue” or “severely out of context” about the electoral process; that contain “hate speech” that promotes racism, homophobia, prejudice based on origin, race, sex, color and age; as well as spreading “hateful” ideologies, such as Nazism and fascism.

Companies have the right to disclose their position on projects in Congress

At the time of the vote on PL 2630/2020, both Google and other technology companies, such as Telegram, had published texts explaining their arguments against the legislation. On the company’s blog, the director of Government Relations and Public Policies at Google Brazil, Marcelo Lacerda, listed a series of arguments that showed how the new law could harm the internet in Brazil.

Among the issues presented, Lacerda stated that, as written, the PL would favor companies that produce disinformation, by limiting the application of the platforms’ policies and terms of use; it would harm the distribution of content, by linking broadcasting licenses to collective management entities; and would limit the free dissemination of information, by establishing an autonomous regulatory entity, a kind of ministry of truth, with functions of monitoring and regulating the internet.

On May 2, based on the thesis that the companies’ actions consisted of “abuse of economic power” to impact the PL vote, Alexandre de Moraes ordered Google and other platforms to remove advertisements opposing the project from the air. He also ordered the Federal Police to take statements from the presidents of Google, Meta (Facebook, WhatsApp and Instagram), Spotify and Brasil Paralelo due to their criticism of the legislative proposal.

Contrary to this type of intervention, Van Hattem states that companies, including Big Techs, they must also have freedom of expression to position themselves, as they depend on the credibility they build with their consumers and clients. “Hindering companies’ freedom of expression on important aspects of legal changes that may affect their services is ultimately hindering consumers’ freedom to choose the best service or product they will consume,” he said.

Another point questioned by Big Techs it was the lack of qualified debate on the topic. At that time, the companies claimed that they were not even called to discuss the text of the proposal. Dino refuted the accusations, saying that they had been asked to participate in meetings at the Ministry of Justice and, for this reason, he considered the companies’ positioning as “disloyal”.

Even with the history of controversies, to date, Dino’s appointment does not seem to have generated any reaction in the Big Techs. A People’s Gazette Google and Meta were approached to comment on the possible developments for freedom of expression, but the companies did not comment at the time of writing this report.

Still in May, the Chamber removed the vote on PL 2630/2020 from the agenda, given the possibility that it would not be approved by the House. Since then, the progress of the matter has continued without definitions in Congress.

Preventing right-wing demonstrations and monitoring profiles in the next elections

Another moment in which Dino revealed the reasons why he seeks to regulate the internet was during the opening of the 59th Congress of the National Union of Students (UNE) held in July this year. The minister stated that the government wanted to regulate social networks because the platforms are used to “spread right-wing ideas and economic power”.

With elections approaching next year, his less-than-conciliatory vision with the opposition could accentuate the tendency towards restrictions on the dissemination of ideas and projects from right-wing candidates. But, according to Marsiglia, it is unlikely that it will have a decisive impact on the “already very strict position of the STF on censorship of user profiles”.

“The resurgence of a more severe stance by the Court will occur, regardless of Dino, in the next elections of 2024 and, above all, in the presidential elections of 2026. Once again we will have the role of the TSE [Tribunal
Superior Eleitoral] leading public and political debate and fake news
as justification for any and all censorship”, he states.

According to the expert, as long as social networks play a decisive role in the Brazilian electoral process, the STF and TSE will not allow the constitutional guarantee of freedom of expression to be fully enjoyed on the networks. About Dino, he also says that, “in a cold assessment, one can expect his political performance, but there is no way to predict what will happen”.

In his first visit to the Senate after his appointment to the STF, seeking approval in the hearing that will be held on December 13, Dino stated that the STF minister has no political side.

“For me, in these matters there is no government or opposition. This is a theme in the country. Anyone who goes to the STF – or intends to, by wearing a toga – no longer has a political side. For me, I don’t look at whether it’s the government or the opposition, but I look at the country and the institution”, stated the minister.

In turn, in an article published on Friday (1st) in the newspaper The State of S. PauloAlexandre de Moraes and TSE minister André Ramos Tavares defend the role of both the Supreme Court and the Court in regulating networks – at least with regard to electoral issues.

“Today, in Brazil and around the world, the Superior Electoral Court (TSE) is at the forefront of combating disinformation, with robust rules and decision-making commands, defining the rules of the democratic game for candidates in the digital age. So, remember the decision by the TSE that equated digital networks with traditional means of communication, which was essential to hold candidates responsible for informational infractions”, they state.

When dealing with the risks arising from the indiscriminate use of Artificial Intelligence (AI) and Tik Tok’s determination to ban certain content generated by AI, both ministers state that this is self-regulation, which […] although welcome, it does not offer the same legal security of a uniform right for everyone and in everyone’s interests, which does not depend solely on the willful and volatile kindness of each digital platform”.