In light of recent events involving misinformation spread on digital platforms (“Platforms”), the Brazilian Government is pressuring for stricter regulations.
Several Bills of Law addressing this issue are being discussed in Congress. Simultaneously, the Supreme Court (STF) will shortly decide on the fate of the safe harbor mechanism established by the Brazilian Internet Law. This mechanism currently governs the liability of Platforms for third-party content and may be revoked or limited.
In the past month, due to online threats and rumors concerning attacks on the Brazilian school system, regulating Platforms has once again come into focus. A 2020 Bill of Law relating to Freedom of Expression, Accountability, and Transparency on the Internet (known as the "Fake News BL"[1]) has been modified and is being discussed in the Brazilian Congress. The aim is to increase the accountability of social networks, search mechanisms, and messaging services for content published by third parties.
Platforms are currently subject to the Internet Law[2], which establishes that they will only be held liable for third-party content if they fail to comply with a judicial order for content removal[3]. This mechanism, known as "safe harbor," does not apply to copyright infringements, content that may harm someone’s reputation or honor, or obscene content, which must be promptly removed upon receipt of a takedown notice. The Supreme Court (STF) is presently discussing the constitutionality of the safe harbor mechanism, and a decision on the matter is expected in June.
One side of the dispute, which is supported by the Platforms, defends the safe harbor mechanism under the main argument that freedom of expression should be preserved, and censorship should be prevented. According to this view, the fear that Platforms could be held liable for simply not complying with an extrajudicial notification would prompt Platforms to adopt a favorable stance towards content removal, resulting in a chilling effect.
The other side defends the unconstitutionality of the safe harbor mechanism based on the argument that it grants Platforms immunity, giving them the privilege of only being held liable if and when they fail to comply with a court order. This mechanism could hinder the effective repair of damage, which would violate the constitutional principle of human dignity. Additionally, the requirement to resort to court under the safe harbor mechanism would infringe on the constitutional rights to privacy, private life, honor, and image. In cases involving consumers, there would also be a breach of the constitutional provision that mandates the State to promote consumer protection.
The Fake News BL is highly controversial due to the arguments mentioned above, such as concerns about censorship, freedom of expression, and the liability of Platforms for spreading misinformation. The Fake News BL establishes, among other provisions, that Platforms will be held jointly liable for damages resulting from third-party content in two situations
(i) when the content has been distributed through paid advertising; and
(ii) when there is a breach of the duty of care during the safety period specified by the law. The safety period refers to the time after the Platform has been notified by the authorities about certain problematic content.
The latest version of the Fake News BL is reported to have been inspired by and to bear similarities to the European legislation known as Digital Services Act or "DSA." One criticism of the Fake News BL is that it omitted provisions regarding the agency or authority responsible for enforcing the law.
The Fake News BL also includes provisions on the remuneration of authors for content and news shared through the Platforms. However, this matter will likely be excluded from the document and inserted in a different Bill of Law relating to changes in the Authors’ Right Law, which is also under discussion in Congress ("LDA BL").[4]
Finally, there is another Bill of Law[5] under discussion that has been inspired by the European legislation known as the Digital Markets Act or "DMA." This Bill of Law, referred to as "BL Platforms," places a stronger emphasis on competition aspects.
The BL Platforms sets forth certain obligations to be observed by the Platforms, including
(i) to be transparent towards consumers;
(ii) to provide clear information about their services;
(iii) to provide equal and non-discriminatory treatment to both professional and end users in the provision of services;
(iv) to adequately process the data collected during their operations;
(v) not to deny access to professional users (individuals or legal entities) who use the Platform to provide services; and (vi) to pay a regulatory fee to the Brazilian Telecommunications Agency ("Anatel"). These obligations are expected to apply to Platforms that have annual operating revenues equal to or exceeding BRL 70 million (approximately USD 13.2 million), considering the services provided to Brazilian consumers or clients.
The scenario relating to Platforms in Brazil remains unclear, but it seems that the current safe harbor mechanism will be changed within the coming months. This revision could occur either through the approval of one of the many Bills of Law under discussion by Congress or through a decision by the Supreme Court on the constitutionality of Article 19 of the Internet Law. The objective of these changes is to enhance the liability of the Platforms for paid content.
[1] Bill of Law no. 2630/2020.
[2] Internet Civil Framework (Marco Civil da Internet), Law no. 12.965/2014.
[3] Art. 19 of the Internet Law.
[4] Bill of Law no. 2370/2019.
[5] Bill of Law no. 2768/2022.
