Without debate in committee, deputies must approve the bill of fake news

The rapporteur for the Fake News PL, Deputy Orlando Silva (PCdoB-SP), this week started an operation with the parties in the Chamber in order to increase support for the proposal to be approved by the House. After an agreement with the Planalto Palace, the mayor, Arthur Lira (PP-AL), indicated that he intends to guide the urgent request in plenary as early as next week.

Opposition deputies see the risk of “treason” and want more time to analyze the proposal, sending the project to a committee instead of direct voting in plenary. For them, by giving the government the power to define “disinformation”, the project poses risks to freedom of expression, such as the possibility of vetoing legitimate criticism of authorities and public policies.

Even so, the expectation is that the urgent request will be approved and then a discussion will be opened in plenary on the merits of the proposal. Behind the scenes, leaders assess that there is more climate for approval of the text than last year, when an urgent request was rejected by parliamentarians.

The text was approved in the Senate in 2020 and provides for rules for removing content, holding social media platforms accountable and sending messages, and combating the spread of false messages and the use of tools such as robots in boosting content. In addition, suggestions presented by the government of President Luiz Inácio Lula da Silva (PT) must be incorporated into the project. The definitive text has not yet been officially presented by the rapporteur, which should be done on the eve of the vote, which also worries the opposition.

Among the points of greatest consensus in the Chamber, the proposal provides for the regulation of networks and should be applied to platforms such as Twitter and Facebook, in addition to messaging applications such as WhatsApp and Telegram.

On the other hand, e-commerce platforms such as Market Livre and Amazon; of closed meetings by video or voice, such as Zoom and Google Meet; to set up non-profit online encyclopedias such as Wikipedia; scientific and educational repositories will not be included in the regulation.

According to the draft presented by Orlando Silva to the deputies, the proposal must also bring rules for the use of social networks by the Public Power and determine the unlawfulness of punishing public servants due to content shared privately. There is also consensus for the inclusion of new competencies for the Internet Steering Committee (CGI.Br).

In addition, the text provides for greater transparency obligations on platforms regarding terms and policies of use, moderation activity, data collection and analysis, as well as digital advertising and boosted content, including during election periods. Another point of consensus is the inclusion of a term for the law to undergo a review after five years that the rules come into force.

Supervisory entity faces resistance from the Chamber

Among the points on which there is still no consensus is the section of the proposal that provides for the creation of an entity by the Executive Branch to regulate the law, supervise and apply sanctions. The critics of this passage argue that the prediction presents a risk of “vigilantism” and prior censorship by the Public Power.

Another point of divergence from the proposal is the section that intends to impose a “duty of care regarding critical content” on networks. That is, the platforms must act preventively in moderating content that constitutes, for example, crimes of violent abolition of the Democratic State of Law and coup d’état.

For analyst Fabrício Polido, specialist in digital law, this point may imply a reduction in the reach of platforms. “Imposing legal obligations based on risks leads platforms to reduce the scope of services. Establishing obligations ‘when there is an imminent risk of damage’ is beyond any proportionality in the legislative technique”, argues the expert.

In addition, deputies who are critical of the proposal also consider that these rules give platforms Judiciary powers, including in the analysis of crimes, encouraging the removal of content and increasing the power of platforms. There is also resistance to the section that intends to transform the social networks of political agents and public servants, including holders of elective mandates, as profiles of public interest.

In this case, politicians, for example, could not block and restrict the viewing of their publications by other accounts. Another critical point of the proposal concerns the device that provides for the classification of the crime of mass dissemination of untrue messages.

The proposal establishes imprisonment of 1 to 3 years and a fine for those who “promote or finance, personally or through third parties, through the use of an automated account for the mass dissemination of messages that contain an untrue fact that is capable of compromising the integrity of the electoral process or that may cause damage to physical integrity and is subject to criminal sanction”.

Rapporteur increases pressure to take the bill of fake news straight to plenary

During meetings with the Chamber benches, Deputy Orlando Silva has signaled that he intends to accept part of the suggestions for changes before closing his final report. Despite this, the rapporteur has demanded that deputies support the proposal as a way to prevent the Federal Supreme Court (STF) from legislating on the subject.

Fernando Francischini had his mandate revoked in 2021 by the Superior Electoral Court (TSE) for allegedly spreading false news about the electronic voting system. The argument, presented to Francischini’s son, federal deputy Felipe Francischini (União-PR), is that the Chamber needs to move forward with this proposal as a way to prevent decisions like that of the TSE from happening again.

Despite this, some deputies are mobilizing for the proposal to be debated beforehand in a committee. Deputy Mendonça Filho (União-PE) presented a request for the establishment of the collegiate. Until this Monday (17), the application already had 74 signatures.

“This theme is related to several themes: social and economic interests, consumer rights, entertainment, criminal legislation. It is not possible to treat the Fake News Law as if it were simple, banal legislation that can be appreciated from a report presented and quickly voted”, he says.

The deputy accuses the PT and sectors of the left of appropriating the debate on the bill of fake news to impose censorship on social networks. “[O ideal é] that we have a period of at least 90 to 120 days to debate in depth and that the report that emerges from this special commission goes to the plenary to be voted. And not an imposition of a sanha that is much more censorship than internet regulation. There is a rage from the radical left and sectors of the PT, who want censorship. And the use of the internet as an intimidation factor in relation to their opponents”, he evaluates.

For Fabrício Polido, the proposal recedes in consensus and the debate in committee before approval in plenary would be the best way. “The bill of fake news will become a kind of Legal Framework for Social Media. The new substitutive text recedes in the consensus, and the best solution now is to concentrate forces in a Permanent Legislative Commission to recover the project”, defends the specialist in Law digital.