The two most debated legislative initiatives on content regulation on social networks have important points in common that go unnoticed.
On the one hand, Bill 2630/20, nicknamed Bill of Fake News, already approved by the Senate, is reaching the final stage of open debates promoted by the Chamber of Deputies.
On the other hand, President Bolsonaro’s provisional measure on users’ rights was happily returned by the Senate and suspended in a monocratic decision by the Federal Supreme Court.
Defeated, the MP turned into PL 3227/21, which is now also being processed in the Chamber. The rapporteur of the Fake News PL, Deputy Orlando Silva, rightly defends that both projects be analyzed together.
It is the most important agenda for freedom of expression and the health of public debate in the 2022 elections.
The first point in common between the two initiatives is that their first versions went down the wrong path.
The fake news PL even contained a definition of the phenomenon that would be applied by social networks to carry out removals. Even adopting a functional concept, it is highly difficult and controversial to decide, in each case, what constitutes fake news.
Legitimizing and encouraging the role of private arbitrator platforms of what is truth or lie in public debate will make the problem worse.
Right now, the Brazilian left is satisfied with the censorship imposed on Bolsonaro and Trump.
But these companies also adopt macho and homophobic logics to remove posts, photos and videos, suppressing important identity messages from progressive movements.
Today, nothing specific in the law protects us from that. The concern with social media users’ freedom of expression is non-partisan.
Likewise, Bolsonaro’s PL repeats the MP’s mistake by creating the category of “just cause” to stifle the moderation made by social networks.
By removing content without just cause, the company could be fined or have its operation suspended. As the supervisory body defined by the proposal, the Executive itself would have the power to decide, in each case, whether the removal was fair or not.
The systemic problems arising from the performance of private companies as arbitrators of the freedom of political expression are still poorly documented. But an arrangement that grants the Executive the final say on the merits of the citizens’ demonstration has a fully known catastrophic cost.
Unlimited power for social media companies or the Executive to dictate the limits of Brazilians’ freedom of expression is not just an unconstitutional solution. It’s also ignoring the problem.
Many people believe that social media is overly permissive and should remove more content.
In fact, Facebook, between May and June alone, took action on 958 million demonstrations in the world – on its own initiative and without legal obligations. For the same reasons, YouTube removed half a million Brazilian videos in the same period.
Did this solve the fake news problem? Obviously not. For at least three reasons.
First, specifically in Brazil, closed groups in messaging applications are probably the means of greatest volume and impact on the circulation of fake news.
On WhatsApp, communications within these groups are encrypted and we are a long way from understanding what really happens, with large data.
Second, bots and mechanized bursts of mass messages are a decisive element in the circulation of fake news. These are often used routes in disagreement with formal platform rules and absolutely no content merit analysis is required to block them.
Third, the production and dissemination of disinformation is also a source of profit for many websites and profiles, which receive from digital platforms such as Google and Facebook a significant portion of the advertising revenues that previously supported investigative journalism.
The current system of advertising with algorithmic allocation has filled the pockets of those who broadcast fake news and dried up the sources of revenue for the traditional press.
A manifesto of press associations from several countries, released recently, defends the regulation of new means to finance investigative journalism, a vital asset for any democratic society.
Now and in the next elections, Brazil does not need to increase the volume of content removals, which is already exorbitant.
It is necessary that the Legislature establish a minimum of limits for the exercise of private censorship by social networks and protect some basic prerogatives arising from the users’ freedom of expression. The social media agenda for 2022 must be focused on due process.
This is the second point in common between the fake news PL and Bolsonaro PL. Both proposals include the guarantee that when suppressing a manifestation or removing an account, companies must obligatorily notify the user of this decision.
The reason for the decision must be explained, and it is no longer possible for the justification to indicate only something vague such as “violated our terms of service”.
If the Judiciary, by restricting citizens’ freedom of expression, is constitutionally obliged to base its decisions, why would social networks be above this responsibility?
Both proposals also require that the author of the censored manifestation can appeal the decision. The vast majority of content decisions today are made by artificial intelligence. The General Data Protection Law already guarantees the right to request review of mechanized decisions.
Congress now has the opportunity to specify the conditions for exercising this right in the case of automated mass suppression of demonstrations.
With or without legal obligation, social networks already invest heavily in identifying and removing fake news.
To ensure that this action respects basic prerogatives arising from the users’ freedom of expression, Congress should adopt as its agenda the regulation of due process in the moderation of online content, in order to ensure a plural and healthy public debate now and in 2022.