Without Fake News PL, body headed by PT oversees social networks

Even without approval of the bill to regulate social networks, an administrative body of the Ministry of Justice has been acting in the supervision of digital platforms. Since the beginning of the year, the National Consumer Secretariat (Senacon), headed by former PT deputy Wadih Damous, has intensified surveillance over companies, using as a basis generic and old rules of the current legislation and also arguments of those who defend the proposal that is being discussed in the Chamber of Deputies, with high rejection among the public and parliamentarians.

Like the Minister of Justice, Flávio Dino, Damous has used the invasion of the headquarters of the Three Powers, on January 8, and the wave of threats and violent crimes in schools, as a pretext to pressure social networks to greater control of content.

In February, for example, the secretary urged executives from the telephony operator Vivo to fight the spread of “fake news”. “We have a commitment that we are seeking with all companies, in the sense of not sponsoring, not monetizing any body, information service, platform, program or communication vehicle that brings misinformation or hateful messages that generate misinformation and insecurity to consumers”, justified Damous at the time.

In March, Senacon demanded that Google and Facebook remove from the air, under penalty of a daily fine of R$ 15,000, videos and posts that propagated a scam, saying that people could redeem fees that would be charged by the government on their credit card, which was false. To support this decision, the agency argued that companies had a “legal duty” to curb fraud on their platforms.

In situations involving crimes, he argued, they would not be protected by the Marco Civil da Internet, which says that providers can only be punished for content generated by third parties if they fail to comply with a court order of removal. This is the same premise of the Fake News Bill, which seeks to oblige companies to remove from the air, without the need for a court order, demonstrations that may configure various types of crimes, from racism to attacks against institutions, including incitement to violence against children and adolescents.

Critics of the proposal being discussed in Congress insist that this assessment should be left to the Judiciary, due to the risk that platforms start to massively remove user posts related to these matters, but that do not constitute these crimes – the idea is that this assessment be made by a judge, after further analysis of the case.

Dino gave Senacon power to fine and suspend platforms

In April, cases of violence in schools led the Minister of Justice, Flávio Dino, to issue an ordinance giving Senacon the power to fine or even suspend the activities of platforms that did not remove the apology for violence in schools.

In addition, it forced companies to carry out “systemic risk” assessments in the dissemination of content that could encourage these attacks; promote “active moderation”, independent of court order and more effective to contain these posts; in addition to informing the rules of the recommendation algorithm that are used in their domains.

These are very similar measures to those proposed in the Fake News PL, but for several other types of crime. “We have no doubt that the ordinance is fully compatible with these laws and there is no violation against the Civil Rights Framework for the Internet”, said Dino at the time, referring to the Penal Code and the Consumer Protection Code.

The day after the publication of the ordinance, Senacon gave 72 hours for the platforms to send a report on the measures taken for the purpose of monitoring, limiting and restricting content that incites violence against schools and students.

Senacon’s toughest measure, however, was handed down on May 2, when it imposed a fine of R$ 1 million per hour on Google if it highlighted, on its home page, a link that referred to an article by the company contrary to the approval of the Fake News PL. The agency accused the company of “privileging” its view of the proposal, of practicing “censorship” against favorable articles and even of making “misleading and abusive advertising”.

Senacon stated that there would be an “active search for interference in the formation of society’s political opinion”, through “directed moderation of content” about the project, which would characterize a “fraud type through abuse of economic power”. All this because of Google’s “dominant position” in the market as a search engine on the internet. Senacon recognized that it was a matter that would be the responsibility of the competition regulation body – Cade –, but said that it could also act to protect the consumer.

“This anti-competitive conduct finds a parallel in the field of protections defined by consumerist law, as it contributes to the increase in the asymmetry of power between the consumer and the supplier, a legal presumption that organizes and systematizes the CDC [Código de Defesa do Consumidor]and going against the legislative purpose of the consumer’s right to reestablish the informational balance and protect the consumer from the vulnerabilities of the consumer market”, says the text of the measure.

A People’s Gazette contacted the Ministry of Justice to obtain the technical note on which the decision was based, in order to better understand the attribution given to Senacon in the case, but did not receive a response from the department.

The decision further undermined the government’s efforts to approve the Fake News PL. Without enough votes, Deputy Orlando Silva (PC do B-SP), rapporteur for the proposal, asked that it be removed from the voting agenda in the plenary of the Chamber.

“Regulation will take place anyway”, teases minister

Last Friday (5), however, Flávio Dino said that the regulation will take place anyway, if not by legislative decision, by action by the Ministry of Justice and Senacon itself, by administrative decisions, or by the Supreme Court. (STF), which already has an action on the subject released for judgment.

“It is important to say to Brazilian society: we have three possible paths for this regulation. One, which we want to come to an end, is regulation by law, that is, by deliberation of the National Congress. If these fans of the digital western managed to impose their will to the point of impeding the legislative process, I remember that we have regulation derived from administrative decisions, including the Ministry of Justice, and there is regulation made by the Judiciary, in the judgment of actions that there,” he said.

The statement provoked even more complaints from the opposition and critics of the regulation, for fear that the government will control the body that will oversee the moderation of content on the networks. The Fake News PL provided for the creation of an autonomous entity for this, also composed of representatives of civil society. With the fear that it would be dominated by government bureaucrats and left-wing militants, it ended up being removed from the text.

Even so, several rules in the bill say that there will be further regulation, which could be done by decree, within which the government could delegate the inspection of the rules to an already existing body. As Senacon has already been acting in relation to social networks, it could be one of the options. Another, already mentioned by the rapporteur Orlando Silva, is Anatel, which oversees telecommunications services. The question is open.

Novo calls for investigation of Dino and Damous for alleged abuse of power

In any case, assigning the role to Senacon, with the idea that it would act in defense of the consumer – in this case, the user of the platforms – is controversial.

Last week, after the body’s decision against Google, the New Party asked the Attorney General’s Office (PGR) to investigate Dino and Damous for alleged abuse of power. It argued that the publication of text contrary to the Fake News PL was not misleading advertising, nor did it involve a consumer relationship with the service user.

“Google did not advertise, nor did it seek to induce consumers to act in accordance with its commercial interest. The company expressed its concern about a bill that deals directly with its functions, its limits, its faculties and its obligations. Thus, in the conception of Minister Flávio Dino, the company could not express any opinion, not even when the matter touches it directly”, says the representation.

The party also stated that the articles of the Consumer Protection Code cited by Senacon would not apply to the case. This law is from 1990, when there were no social networks or internet search services. “Now, art. 4 deals simply with consumer protection principles. Article 6, III, deals with adequate information on products and services, but in relation to specification, composition, quality, taxes and risks. Article 20 deals with product defects that make it unfit for consumption. Article 37 deals with misleading or abusive advertising and art. 39 takes care of abusive practices entirely dissociated from the specific case.”

Former head of Senacon criticizes injunction against Google

Lawyer Luciano Timm, who headed Senacon between 2019 and 2020, notes that the body acted ex officio in the case, without any provocation and granting precautionary relief in an administrative proceeding without hearing the interested party.

“The granting of an injunction depends on the evidence of materiality not brought by the body, as far as I have heard, and on an appearance of good law. At this point, the illegal advertising was not clear to me, since there is no product or service traded on the market and not exactly a clear consumption relationship, which would depend on a broader discussion. Perhaps the topic should start with a request for clarification, which could be converted into a sanctioning administrative process, with broad right of defense and participation of society”, commented the former secretary to People’s Gazette.

He considers that the application of the consumer protection code (CDC) gives a wide margin of discretion to a supervisory body, such as Senacon, as it involves open concept principles, such as “abusiveness” and “good faith”.