Leia a versão em português da análise do novo decreto aqui.
The Coalizão Direitos na Rede, a collective that congregates 45 entities of civil society and academic organizations that advocate for digital rights, analyzed the new presidential draft decree that aims at regulating the Civil Rights Framework of the Internet (Law no. 12,965/2014) and warns Brazilian society on the enormous risk it represents.
In an illegal and unconstitutional initiative that may allow misinformation and hate speech to have a safe haven online. Bolsonaro may break the Internet as we know it. The debate on the regulation of large platforms is on the agenda and Brazil must play a larger role in this discussion. But the dangerous solution presented by the government may harm users, public agencies, and companies that interact and offer services online and may cause an irreversible impact on the proper functioning of the Internet in the country.
Made public by press outlets, the draft decree presents a new regulation for the Civil Rights Framework of the Internet (MCI), that institutes the rights of users and services online. In the case of application providers (platforms such as Facebook, Google and Twitter and several other services offered online), art. 19 of the law states that those who operate based on content produced by third parties may only be legally responsible for such messages if they do not follow that order upon receiving an injunction to remove it.. Moreover, the model instituted by the MCI allows these intermediaries to have their moderation policies (such as rules of what may or may not be published). At the same time, it establishes that they must follow whatever the judiciary power may determine further on.
However, the draft decree outlined by the Secretariat of Culture inverts this logic by compelling that any publication exclusion, limitation, or suspension of accounts may only occur by means of a court order, with some exceptions. The proposal would have a devastating effect on the Internet. Mainly because it would not regulate only the large social network platforms, but any type of online service online. If this decree is published, a website could not, for example, remove abusive comments of readers if they do not receive a court order to do so. Mobile applications could not exclude service providers’ accounts that may have committed serious offenses (such as cases of harassment on Uber or AirBnB) on their own. Knowledge platforms, such as Wikipedia, would not be able to edit entries with blatant lies. That means that court orders would be the general rule for content moderation.
In considering social networks, the decree would make such spaces homogeneous, inhospitable, and toxic. Such companies could not execute the control of spam or weapons sales without a court order. And more than that, they would not be able to apply measures in accounts destined solely to promote crimes, harassment or bullying without appealing beforehand to court. Under the banner of “freedom of speech,” the government would eliminate the possibility of Brazilian men and women to feel safe and heard, and to express themselves, creating an Internet without any diversity. An Internet that would allow the unpreventable activity of the most violent users and those that flood timelines with spam. This ultimately violates freedom of speech and overall access to information.
The draft decree has some exceptions in which the platforms could act without the prior authorization of a judge. However, the list, in addition to being vague, excludes situations in which a swift response by the social networks has been ultimately relevant, such as cases of content that stimulates hate or misinformation. The draft also limits the possibilities to suspend and exclude accounts, a fundamental issue that must be debated and subjected to democratic rules at the risk of attacking freedom of speech and silencing non-conforming voices.
It is important to highlight that the Civil Rights Framework of the Internet was not dedicated to regulating or limiting the application of content moderation measures on the Internet, precisely to guarantee the balance between the freedom of speech of users and to foster the development of an environment of innovation and the activities of application providers. In that sense, each and every attempt of modification in the intermediate accountability regimen present in Article 19 must necessarily be created by another bill and not through a presidential decree, as proposed1.
We know that the content moderation rules adopted by the large platforms need improvements and guarantees (such as transparency and due process) according to the freedom of speech. However, the decree under debate, upon creating new parameters and logics for platforms’ activities, subverts the landscape in which these discussions are currently occurring, threatening the present status of the public debate on the matter.
Distortion of the concept of copyright
The decree, if enacted, will also strongly impact the production and broadcast of content online by imposing limitations and obligations for copyright-protected publications. The norm would delegate to the Secretariat of Copyright and Intellectual Property of the Ministry of Tourism the power of enforcement that would turn it, in practice, into a mega controller of the Internet in Brazil. According to the draft, the Secretariat would have the power to select the copyright infringements committed by the Internet platforms, in an argument that insinuates that everything that is posted online is a work under copyright. Under this reasoning, the platforms would be obligated to post whatever their users produce.
By trying to go above the copyright protection system in Brazil, the government attempts to use it as a shield against the actions of Internet companies regarding user content, which creates problematic rules. As is known, not everything that is produced is original enough to be protected by copyright. Even on copyrighted content, the copyright does not create an automatic obligation so that that licensed party is obligated to publish something.
The focus of the multi-sectoral debate on the regulation of the Internet
The influence of the platforms on our lives and on contemporary democracies serves as fuel to debates around the world on rules and possible limitations that these companies would have to respect. Democratic nations have been dealing with this subject with broadand participatory discussions. Regulation of the online debate that balances the freedom of speech and the right to correct information may not leave the digital platforms solely in charge of moderation, as they have already demonstrated their incapacity of dealing with the problem in its entire complexity, nor to be constructed in an authoritarian way and taken over by a government. The path that democratic nations have gone down is the same as that of public regulations, built together with multiple sectors that uphold freedom of speech and allow people to fight against any abuses thereof. They are regulations based on complementary systems with actions performed by public agencies, platforms, and applications.
Therefore, it is required that any new rule in this direction is subject to a broad public debate. It is important to highlight the successful Brazilian experience out of which the very Civil Rights Framework of the Internet (MCI) was created, recognized internationally, and based on a multi-sectoral debate led by the Brazilian Internet Steering Committee (CGI.br). Furthermore, the MCI text establishes that guidelines for the performance of the Union, States, Federal District, and Municipalities concerning the development of the Internet in Brazil must be elaborated with the participation of the CGI.br (Art. 24, II), recognizing the fact that processes that count on the engagement of different sectors of society are the ones that may better produce democratic standards and laws for the regulation of the Internet.
Parliament must also be granted a space in this discussion -and this is already taking place. Last year, the Senate passed PL 2,630/20, which precisely aims to create rules on circulated content and behaviors of accounts within large social networks. Although the bill was approved and sent to the House, it still has issues and requires adjustments; it reflects the state of the debate within Brazilian society in a more consistent way than the decree under review. Moreover, it was subjected to ample public debate by different segments, which has not occurred in the decree drafted by the executive branch.
Defects of form and unconstitutionalities in the draft
The decree has serious issues both in the merit of the rules proposed and in the method in which it intends to discipline Internet content. In that sense, attempting to promote a legislative shift by means of a Presidential Decree, an inferior regulatory tool, is blatantly unconstitutional and illegal. The attempt to promote legislative innovation through issuing an inferior legal text – and not the simple regulation of matters within the text of the Civil Rights Framework of the Internet under the free exercise of the competencies attributed to the President of the Republic by art. 84, IV, of the Federal Constitution – represents an illegal action by the Federal Government and disrespect to the will of the legislators.
Despite the decree’s justification, which claims to regulate “the guarantee to the right to privacy and freedom of speech in communications” as a “condition for the full exercise of the right of access to the Internet “, as delimited by art. 8 of the MCI, what it brings is a shift to the model of intermediate responsibility established by Article 19. This innovation is done without consultation with competent agencies, as determined by law, such as the Brazilian Internet Steering Committee (CGI.br) or society in general.
An executive decree cannot overlap provisions in the law that support and justify it, nor extend its normative reach, since, as stated previously, within the hierarchy system of norms in the Brazilian legal system, the decree is below constitutional regulation. Therefore, its limitations must be observed under penalty of being considered invalid or unconstitutional2. With the case in question, the draft text surpasses the matters dealt with by the Civil Rights Framework and innovates in the regulation of Internet use in Brazil, as already stated.
Finally, it is important to highlight that the possibility of a subsequent regulation must be foreseen by the legal text itself, being the President of the Republic limited to regulate rights and duties already established by law. However, what happens here is the attempt to regulate Internet behaviors based on Article 8 of the Civil Rights Framework, which at no moment requires or defines the possibility of issuing an executive decree. In that sense, if issued, the decree will be created with a defect of unconstitutionality and will, therefore, be invalid.
All things considered, with regards to the importance of the subject towards the guarantee of the functioning of the Internet as we know it, the preservation of control measures against the dissemination of misinformation, hate speech and to promote a healthy environment online, the Coalizão Direitos na Rede requests that the decree draft in question not be enacted. There is a risk of completely shifting the balanced model of intermediate responsibility, attained through the sanction of the Law n. 12.965/2014, without any space of contribution by society, which are obligatory according to the legal provisions.
We reiterate that this debate must be subjected to ample, participatory, democratic, and multi-sectoral discussions, in the scope of the Brazilian Internet Steering Committee and the National Congress. Thus, we remain at the disposal of public authorities to contribute to the discussion on the regulation of platforms and content moderation for social networks, under the belief that, upon following the historical and participatory experience of the process that resulted in the enactment of the Civil Rights Framework of the Internet, our country may give another relevant contribution to the challenges set forth for the functioning of the Internet around the world.
Brasilia, June 8th, 2021.
1 ISOC Brazil. ISOC Brazil Statement on the decree bill that intends to regulate the removal of contents and profiles in social networks. Available at: https://www.isoc.org.br/noticia/confira-a-manifestacao-da-isoc-brasil-sobre-a-proposta-de-decreto-que-visa-regulamentar-o-marco-civil-da-internet
2 Ip.Rec. Position Paper on the Draft of the Presidential Decree that modifies the Civil Rights Framework of the Internet. Available at: https://ip.rec.br/publicacao/nota-tecnica-sobre-a-minuta-do-decreto-presidencial-que-modifica-o-decreto-no-8771-2016-que-regulamenta-o-marco-civil-da-internet/