"Justice" sculpture located in front of the Supreme Court building in Brazil. Photo: Pedro França/Agência Senado.
On 26 June this year, the Brazilian Supreme Court concluded a ruling on the country's Civil Rights Framework for the Internet (MCI, the acronym in Portuguese) – a pioneering piece of legislation enacted 11 years ago to define principles, rights and duties for internet use in the country. More specifically, the Court was assessing the constitutionality of Article 19, which focuses on the accountability of platforms for damage resulting from content posted by users.
By declaring this article partially unconstitutional, the Supreme Court highlighted the need for platforms to comply with the national constitution and other frameworks for the protection of fundamental rights and the country's democracy. The decision focused specifically on making platforms jointly liable for content that is considered illegal or criminal, or that could cause serious and significant harm to users, such as child pornography, hate speech, racism, and attacks on the democratic rule of law, among others.
Holding platforms accountable is urgent worldwide, and the Brazilian Supreme Court has set an important precedent. “The decision establishes, legally, in Brazil, that digital platforms are not neutral in relation to the content that circulates in the virtual environment," highlights Bia Barbosa, a member of the organisation Right to Communication and Democracy (DiraCom) and civil society representative on the Brazilian Internet Steering Committee (CGI.br). The fact that the article was only partially revised was very important, she explains, in order to safeguard other platforms, since the internet is not limited to Big Tech companies.
Regulating content removal, however, is not a simple task, as it must mitigate the risk of censorship by corporations that, by prioritising monetisation, profit and concentration of power, have a history of collusion with authoritarian governments and complicity with human rights violations. The challenge also lies in regulating these platforms without harming other models that exist on the internet.
"While it is clear that it is necessary to regulate the operation of platforms and commit them to combating misinformation, Nupef has concerns about the power given to companies that own content applications to define what can and cannot be removed/published," emphasised Flávia Lefèvre and Oona Castro, both from Instituto Nupef, an APC member in Brazil. The organisation highlights the need for regulation that focuses on the algorithmic practices of Big Tech, transparency, mandatory periodic reporting on the criteria used for content removal and account suspension, as well as their outcomes, and the availability of applications that allow regulators and researchers to access data related to these practices.
Intervozes, also an APC member in Brazil, explains that although the understanding that platforms are responsible for illegal content is positive, the Supreme Court has not clearly established objective parameters and transparency obligations. "Without a specific law detailing procedures, there is a risk of excessive concentration of power in the hands of the companies themselves to decide what remains online and what does not," pointed out Ramênia Vieira from Intervozes. She also highlighted the need to create independent supervisory bodies, with multistakeholder participation, capable of monitoring companies and receiving reports of abuse.
From intermediaries to key drivers of the problem
The objectives of the MCI's Article 19 are, as stated in its wording, to prevent prior censorship and guarantee freedom of expression. According to Instituto Nupef, the logic behind it was simple: in order to prevent platforms from arbitrarily taking down content based on criteria linked to their commercial and profit interests, they should not be held liable for content published by their users. "The legislator wanted to ensure that the legality of a given piece of content would be analysed by the judiciary, without the contamination of private interests." In recent years, however, freedom of expression has become mixed with misinformation, and platforms have done little, if anything, to mitigate the proliferation of misinformation online. "On the contrary, their algorithms often encourage this type of content," highlights Instituto Nupef.
The operating model of Big Tech was substantially different when the MCI was approved in 2014. At that time, most of the companies were seen as mere “intermediaries” in the circulation of content posted by third parties, which has now proved to be very far from reality. “The transformation in their business models during this period meant that decisions made by algorithms, structures of content recommendation and moderation – business decisions based on the economic and political interests of their owners – became decisive for the dissemination of content," adds Barbosa.
More recently, part of the civil society organisations in Brazil began to argue that platforms should have the power to remove content without a court order. However, to mitigate the risks of excessive content takedown, the recent ruling must be complemented by a regulation developed through a participatory process, with mechanisms for transparency, oversight and accountability in place, according to Barbosa and a wide coalition of Brazilian organisations, including APC members Intervozes and Instituto Nupef.
For Intervozes, Brazil is at a strategic moment to align digital rights guarantees with the protection of democracy if it is possible to move forward with legislative proposals – such as a bill on fake news proposed in 2020 (Bill 2630/2020) – through public consultation forums, hearings and dialogue with experts, civil society and populations affected by current problems. With a strong civil society organised to defend digital rights, the country has a positive precedent in this regard: the MCI itself is an example of legislation that was developed through participatory processes and guarantees rights, even if it needs to be updated today.
"This experience, if conducted with participation and transparency, could become a benchmark in the Global South on how to hold platforms accountable without paving the way for censorship. At the same time, the country needs to take advantage of this moment to strengthen its collective action, together with Latin American countries, in defending the region against the concentrated power and disproportionate influence of large digital platforms," adds Ramênia Vieira.
Exploring existing accountability mechanisms
The lobby of large technology companies in alliance with far-right groups, however, has been acting to block the advancement of necessary regulations, often presenting them under false arguments of censorship or restriction of freedom of expression, according to Instituto Nupef.
While Intervozes stresses that freedom of expression is not absolute and it coexists with other fundamental rights, such as human dignity and the protection of children's rights, the organisation recommends exposing "how the narrative of 'any regulation is censorship' has been instrumentalised by big tech companies to maintain a business model based on attention, toxic engagement and impunity." In addition, establishing democratic regulation is not censorship, but a mechanism to prevent arbitrariness by platforms and ensure due process, as explained by Ramênia Vieira.
An environment of misinformation makes it even harder to push forward an honest debate to improve the country's regulation to safeguard fundamental rights and freedom of expression together, both in Brazil and worldwide. This makes the environment for new effective legislation extremely difficult, as pointed out by Instituto Nupef. "After the election of Donald Trump in the US, the challenge is even greater, [as] he is acting in defence of the interests of platforms in order to avoid regulation of their activities, and is imposing sanctions on Brazil with express mention of the issue of Big Tech, which supported and financed his election," they add.
A recent video denouncing the exploitation of children for monetisation on social media has reignited the debate on a bill to supplement the regulation of social media in the country, seeking to increase safety and reduce exposure for minors on the internet.
But even without a new regulation, Instituto Nupef notes that the Brazilian legislation already holds platforms accountable, as is the case with the country's Consumer Code, Electoral Law and Statute of Children and Adolescents, which could and should have been enforced long ago.
"The development of content moderation algorithms, calibrated to expand the reach of content that violates the law, as well as the paid promotion of content that encourages illegal discrimination, hate speech, among other illegal acts, and even the recommendation of illegal content, are acts of the platforms themselves, which bring them profit and, therefore, these companies, under existing laws, must be held liable, together with the author of the content, for damage caused by their commercial practices," underlines Flávia Lefèvre and Oona Castro.
What is missing, emphasises Nupef, is for the competent public authorities to actually enforce the laws that already exist and are not respected by platforms, since cases of violations are clear and piling up: there are thousands of cases of illegal content circulating on social networks, affecting children and adolescents in particular, especially now with the advancement of artificial intelligence. The same can be said about cases of misinformation that have already caused concrete damage to the country's democratic institutions, "as we saw with the attempted coup on 8 January 2023, which aimed to prevent the president elected in 2022, Luis Inácio Lula da Silva, from taking office."
The current situation calls for social organisation to enforce existing laws and combat misinformation in the country, according to Lefèvre and Castro, since it shows that the advocacy for transparency, accountability and respect for freedom of expression is deeply related to the political environment and the debate over narratives. "This points to the need for organising ourselves to confront neoliberal ideals and the far-right movement that supports them using social media," concludes Instituto Nupef.