‘We cannot continue thinking that social networks are no man’s land,’ says Moraes

Gabriel Abreu – From Cenarium Magazine

BRASILIA – The Federal Supreme Court (STF) debated, during Tuesday, 28, and on the morning of Wednesday, 29, in a public hearing, the regulation of social networks in Brazil. During the event, the ministers of the Brazilian Supreme Court defended the approval of Bill 2.630/2020 (PL 2.630) and highlighted disinformation as a particular problem. Present at the event, STF minister Alexandre de Moraes defended extending the self-regulation that already exists for pornographic or copyrighted content to hate speech. Moraes is the rapporteur of the “fake news inquiry”.

“It would not be efficient to try, in some way, to define what fake news is, but it is possible to extend self-regulation and a more direct action for objective issues: attack against institutions and against democracy. However much some may want to defend (…). We cannot continue to think that social networks are no man’s land, without any responsibility”, said the minister.

Bill 2.630/20 establishes the Brazilian Law of Freedom, Responsibility and Transparency on the Internet. The text creates measures to combat the dissemination of false content on social networks, such as Facebook and Twitter, and private messaging services, such as WhatsApp and Telegram, excluding services for corporate use and e-mail. The measures will apply to platforms with more than two million users, including foreign ones, provided they offer services to the Brazilian public.

Justices Dias Toffoli and Luiz Fux are rapporteurs of two appeals, with general repercussion, which discuss rules relating to the so-called Marco Civil da Internet (Law 12,965/2014). Fux argued that the participation of experts in the public hearing is essential to support the judgment of the appeals filed by Google and Facebook, which are underway at the STF, because it deals with such a specific theme.

The minister believes that the Court will find the best solution to adapt the normative reality to the practical reality, in the solution to the controversy over the liability of application providers for content posted by third parties.

Dias Toffoli said that the law establishes principles, guarantees, rights and duties for Internet use in Brazil, but that even so it cannot contemplate all possible situations. According to him, the evolution of digital technologies “puts into question traditional legal notions” to combat numerous violations of fundamental rights and personality rights that occur on social platforms and networks. Toffoli believes that the hearing will bring valuable contributions on how the internet works and its impact on society.

Adequate Monitoring

Justice Luis Roberto Barroso, meanwhile, listed that freedom of expression is a precious right and that platforms need moderate state regulation, broad self-regulation, and adequate and independent monitoring of this regulation, as well as media education.

“Misinformation, deliberate lying, hate speech, attack on democracy, and incitement to commit crimes violate the three foundations that justify the protection of free speech. The difficulty here is not in trying to prevent this type of behavior, but in identifying it properly in a complex, plural and subjective world, avoiding the practice of any and all excesses,” Barroso argued.

Algorithms

The Minister of Justice and Public Safety, Flávio Dino, defended, during the meeting, algorithm transparency and said that the regulation of networks is not exclusively a business issue, since technology companies exercise “control over the public space and the public discourse of society.” The minister advocates form of regulation in algorithm programming.

“The algorithm is human. It is not a divine entity suppressed from regulation. The algorithm is human and, for that very reason, regulation, which is something humanly programmed and reprogrammable, must be dealt with,” he said.

Civil Rights Framework

The Marco Civil, sanctioned in 2014, determines in its article 19 that “the provider of internet applications can only be held civilly liable for damages arising from content generated by third parties,” if it does not comply with a court order for the removal of content

At the hearing, representatives of Facebook and Google defended the constitutionality of article 19 of the law sanctioned in 2014. The two companies argue that the current rules do not inhibit content moderation, and that they delete millions of publications on their own.

Facebook Brazil’s legal manager, Rodrigo Ruf Martins, said in his speech that the unconstitutionality of article 19 would lead to a considerable increase in the removal of subjective content.

“Allow me, Excellencies, a warning. The declaration of unconstitutionality (of article 19) would lead to a considerable increase in the removal of subjective content. Critical content, which is so important for public debate and democracy, they would end up removed, even without violating the law or policies, but as a way to mitigate legal risks for the platform.”

Google Brazil senior attorney Guilherme Cardoso Sanchez explained that holding platforms responsible as if they themselves were the authors of the content they host would lead to a generic duty to monitor all content produced by people.

“Holding platforms liable as if they themselves were the authors of the content they host would lead to a generic duty to monitor all content produced by people, completely denaturing the plural environment of the internet. Article 19 of the Civil Rights Framework reproduces the consensus of democratic countries in ruling out the direct and objective responsibility of platforms for monitoring the content generated by people,” said Cardoso.

TikTok’s Director of Public Policy in Brazil, Fernando Gallo, that the platform will have a perverse incentive to remove expressive numbers of content every day, including legitimate ones.

“If in the remote possibility that the Supreme Court decides that article 19 is unconstitutional, making platforms like TikTok jointly responsible for content, without establishing objective criteria and parameters for notifications, we will have against us, given the risk of litigation, a perverse incentive for the removal of a significant number of contents, every day, including legitimate ones,” Gallo concluded.

Closing of the hearing

In closing the hearing, Minister Luiz Fux praised the excellence of the speakers. According to him, the lectures were enriching and contributed to the analysis of the theme, which involves interdisciplinary knowledge and is not strictly inherent to the legal field.

For the minister Dias Toffoli, the hearing on the Marco Civil da Internet was relevant for bringing to court the various views of society, subsidizing the analysis of the legislation, the operation and limits of platforms in the face of constitutional principles.