What does Moraes want in the new regulation of social networks

The Minister of the Federal Supreme Court (STF) and President of the Superior Electoral Court (TSE), Alexandre de Moraes, wants to influence the elaboration of a law that tightens the regulation on social networks, in order to curb the dissemination of content that poses threats to democratic institutions. The agenda is also adopted by the government of Luiz Inácio Lula da Silva (PT), as a reaction to acts of vandalism against the headquarters of the Three Powers on January 8.

Moraes recently informed, at an event by the Lide business group, in Lisbon, that a TSE commission will send proposals to Congress with “mechanisms for regulating social networks”.

The minister did not elaborate, but indicated that the suggestions could be inspired by measures he adopted at the Electoral Court last year to speed up the fight against “fraudulent news” and “hate speech” – a task that had already become minister’s main flag as rapporteur of inquiries in the STF to investigate offenses and threats to colleagues.

Among these measures are:

• possibility of removal from social networks, on the initiative of the Judiciary itself, without request from the parties or the Public Ministry, of content deemed “known to be untrue”;
• Suspension, for an indefinite period, of accounts and profiles with “systematic production of misinformation”;
• heavy fines (up to BRL 150,000 per hour) for companies that do not comply with these same orders within 2 hours;
• and even the suspension of these social networks or applications in case of repeated disobedience.

Such measures are not provided for by law, but were adopted by Moraes, even after the elections, based on a resolution proposed by him and approved by the TSE in October last year, before the second round.

Questioned through its press office, the court was unable to inform who will compose the commission that will formulate the proposal to be sent to Congress, when and how this will occur.

Moraes defends rapid accountability of authorities that promote “attacks” on democracy

In his speech in Lisbon, Moraes set out his premises. He said that social networks, which emerged as a “highly democratic instrument”, for allowing free expression and opinion by all, would have been, over the last few years, “captured by the populists, mainly by the extreme right, and turned into a mechanism brainwashing”.

“This brainwashing turned people into zombies. People repeating absurd ideas, people singing the national anthem for tires, people waiting for ETs to come to Brazil to solve the supposed problem with the voting machine. What could have been a comedy is a tragedy, which resulted in the failed January 8 coup attempt,” she said.

It was a direct reference to demonstrations by supporters of former President Jair Bolsonaro (PL) who, in front of the Army, contested Lula’s election, pointing to the TSE’s partial role in conducting the electoral process, in addition to the suspicion of fraud in electronic ballot boxes. On January 8, part of the protesters, in revolt, invaded and destroyed the buildings of Congress, the Planalto Palace and the STF.

To combat movements like this, according to Moraes, it would be necessary to change regulations at the national and international levels. He defended, for example, a faster accountability of authorities that promote internal attacks on the democratic regime.

The minister, however, did not detail what kind of procedure could be proposed for this. He only said that, in modern Constitutions, there are mechanisms to repel external threats to a country’s democracy – such as the state of defense and siege – but not to quell the internal ones.

“How to deal with the corrosion of democracy, when it comes from populist politicians who attack the institutions internally? If all the mechanisms foreseen for external attacks foresee a strengthening exactly of this populist politician?”, he asked.

With that, he suggested that, in the event of an “internal attack” on democracy, the Executive could not be strengthened. The same could not happen with the Legislature, if the threat comes from parliamentarians.

“How to establish new mechanisms to control the abuse of the Legislative itself and of some members who distort their own institutional guarantees, their parliamentary guarantees, in defense of democracy, of the rule of law, when they start to use this to attack democracy itself ?” he asked, leaving in the air which Power, authority or institution would, after all, have the role of curbing internal threats to democracy.

Last year, Moraes was at the forefront of the trial that sentenced former deputy Daniel Silveira (PTB-RJ) to almost 9 years in prison for threats to him and other STF ministers. On the occasion, following the understanding of the minister, the plenary considered that parliamentary immunity does not protect manifestations that attack democratic institutions.

“What is valid for traditional media must be valid for social networks”, argues the minister

At the Lide event, Moraes also said that social networks should be held accountable like traditional media when they publish anti-democratic content.

“They can be neither more nor less controlled than media companies. Responsibility for abuses, dissemination, transmission of fraudulent news, dissemination of hate speech, this responsibility cannot be greater, but it cannot be less than in the rest of traditional media”, said the minister.

Questioned later if such measures could not slide into censorship, he denied. He said that “beacons of accountability” needed to be better established.

“It is not about analyzing content in advance, it is not about – this the Constitution would never allow – the need for authorization or not to publish something. Now, who has the courage to publish, virtually or not, hate speech, anti-democratic speech, offense to people. If you have the courage to publish, you must have the courage to take responsibility. It is the binomial freedom with responsibility. What is true for written media, which is true for television media, which is true for traditional media, must also be true for social media”. This, according to him, would not prevent any criticism of the STF, for example, but only threats and attacks on the Court.

The Brazilian Constitution prohibits any type of censorship and consolidated jurisprudence in Brazil prescribes that any offenses – especially slander, defamation and injury, which are also criminalized conduct in the country – broadcast by a newspaper or broadcaster, for example, even on the internet, are punished with compensation for their victims. Liability, civil or criminal, always occurs after the publication of the content, never before, according to this understanding.

Marco Civil da Internet at risk

The main idea to tighten the regulation on networks, making them responsible for published criminal content, consists of revising one of the main rules of the Marco Civil da Internet, a law approved in 2014 that establishes principles, guarantees, rights and duties for the use of the network in Brazil.

Article 19 says that platforms and websites can only be punished for content posted by users or visitors if the company that owns that application fails to comply with a court order of removal.

It means that, in principle, the idea is to punish the original author of that content, if the Justice considers it illegal. Only when the owner of that domain fails to comply with the withdrawal order, she starts to be punished, with a fine or compensation.

Within the new government, Congress and the STF itself, there are debates to review this rule. The justification is that, in the face of massive attacks on institutions that could jeopardize democracy, it would be necessary to force social networks to have a more proactive posture, and not just reactive, in controlling what is published by users. The same interpretation could be made in the case of attacks on public policies that protect essential rights, such as vaccination for collective health.

Defenders of a stricter law for social networks believe that it would not be enough for companies to implement internal content moderation policies to ban posts inciting violence, encouraging child prostitution or drug trafficking, for example.

If there are no restrictions on anti-democratic or anti-vaccine content, the platform could already be punished by the public authorities. The so-called “duty of care” would be imposed on all, a principle that may be part of the proposal that the government will present to Congress, within the so-called “democracy package”.

Rapporteur of the fake news bill in Congress, Deputy Orlando Silva (PCdoB-SP), also admits a revision of the Civil Rights Framework for the Internet. “I don’t know the text to be proposed, but in my opinion, article 19 of the Marco Civil is not written in stone,” he told the People’s Gazette.

He says that the suggestions of the new government and “any proposal” that comes from the STF must be considered. “The final decision will be up to deputies and senators.”

The deputy’s greatest resistance is in the way chosen by the government to propose the changes, through a provisional measure. “It is effective as a law while it is in force. It is the prerogative of the President of the Republic, but I do not believe that a provisional measure will be sent on an issue that has already had an MP returned by the National Congress. In addition, this topic is under debate in the National Congress, an MP would not make sense ”, he says.

He was referring to the provisional measure sent in 2021 by Bolsonaro to Congress, which had the opposite objective: to limit the removal of content by social networks. It was returned by the President of Congress, Rodrigo Pacheco (PSD-MG) to the Executive, on the grounds that it regulated issues that could only be the subject of deliberation by the Legislature.

Theme is also dealt with in action at the STF

The STF, in turn, is also discussing the possible revision of article 19 of the Civil Rights Framework for the Internet, but within the scope of a lawsuit that questions its constitutionality. The trial was scheduled for June last year, but was withdrawn from the agenda by the president of the STF, Rosa Weber.

In an opinion on the subject, attached to the process, the former minister of the Court Nelson Jobim and the director of the Institute of Technology and Society (ITS) Ronaldo Lemos, defended the thesis that providers should not have the obligation to previously inspect the content published on their platforms.

“Many application providers’ primary function is to provide ‘virtual space’ for users to share and obtain information online. In these business models, called by some many-to-many, users are responsible for creating the content, without prior editing by the platforms. The high volume of users and the content produced by them would make, if prior inspection was mandatory, the restriction too severe to reduce the possibility of the provider being held liable in court. These obstacles to freedom of expression could result in massive censorship of content posted on the internet,” says the opinion.