Update: Brazil’s Senate approved this bill on Tuesday, June 30. The bill still needs to be voted on by the Chamber of Representatives.
The Global Network Initiative (GNI) is very concerned by provisions of the “Brazilian Law of Freedom, Responsibility and Transparency on the Internet” bill (PL No. 2630), which has been introduced in the Federal Senate of Brazil and on which voting is expected to continue on June 30. GNI understands the importance of making sure that accurate information reaches Brazilian citizens, especially during the current global pandemic. However, we believe several provisions in this bill would be counterproductive to its stated intent and likely result in the violation of important, foundational human rights. GNI calls on the National Congress of Brazil to reject the proposed bill and to pursue careful and thorough multistakeholder consultation on how best to deal with disinformation before drafting any further legislation.
The “traceability” obligations in the bill raise significant freedom of expression and privacy concerns. No democratic government has passed into law any traceability provisions in its efforts to regulate online content. Requiring the ability to trace content to specific identities would be technologically challenging and give providers a degree of power they do not seek. Furthermore, it would likely destroy the ability of Brazilians to communicate securely and privately, chilling their willingness to exercise their freedom of expression.
Provisions requiring users to register for social media and private messaging services using government identification documents, together with the law’s data retention requirements, will further chill freedom of expression and independent journalism. This requirement, together with the obligation to suspend accounts whose mobile phone number has expired, will also disproportionately impact the availability of these services for economically disadvantaged and marginalized groups, potentially widening the digital divide in Brazil. Notwithstanding the allowance of public-facing pseudonymity, these provisions would not only allow but would in fact mandate mass collection and processing of personal information.
The latest version mandates the immediate removal of content related to criminal activity, which will likely cause social media services to remove any potentially criminal content until it can be vetted. This could significantly limit the ability of Brazilians to use social media to document and decry criminal activity, exercise fair use of copyrighted content, engage in political discourse, and otherwise share urgent information. Furthermore, the new draft sneaks in a provision completely unrelated to disinformation, requiring all Internet application providers to pay journalists, media companies, and intellectual property owners for the use of their content.
On the topic of content moderation, although the bill features some measures that might helpfully enhance transparency and due process, it also contains unclear provisions that could unnecessarily hinder the ability of social media and messaging services to quickly respond to certain clear violations of their terms of service.
The bill would create uncertainty for independent news media at a time when “the situation for journalists is at crisis levels in Brazil.” As key players in the fight against disinformation, journalists have a crucial role in a healthy information ecosystem. Brazil should not pass legislation that threatens to undermine the nation’s already weakened media institutions and endanger journalists’ vital ability to protect communication with their sources.
In 2014, Brazil passed the landmark legislation Marco Civil da Internet, becoming the first country in the world to put such a robust framework of online rights and freedoms into law. It resulted from years of multistakeholder consultation that stands in stark contrast to the truncated process used to consider this bill. Brazil’s legislature should heed calls from international experts and civil society and take care to respect the rights enshrined in Marco Civil by rejecting the “Law of Freedom, Responsibility and Transparency on the Internet” and engaging in meaningful and transparent multistakeholder consultation to find a truly rights-respecting way forward.