A historic moment and the bill.

Bill 2630/2020, also known as the "Fake News Bill," authored by Senator Alessandro Vieira (CIDADANIA-SE), emerges in a delicate scenario, both for Brazil and for the rest of the world.

At the peak of the Coronavirus pandemic , when the vast majority of the population is physically isolated due to government mandates aimed at reducing contagion, social media becomes the best way to disseminate news, stay in touch with family, and connect with life outside the confined world of that moment.

However, with the rampant use of online communication media, or application providers, the sheer power of these platforms also becomes evident. 

Through the internet, it is possible to find people with diverse thoughts, who often share the views of the average user, forming large virtual centers of identification and a sense of belonging.

In this scenario, some concerns begin to be raised:

• The existence of fake accounts, with phantom users; 
• Automated distribution networks, popularly known as robots;
• The covert sponsorship of content.

The concerns stem from the widespread dissemination of misinformation on social media, with fake news about the coronavirus pandemic, upcoming municipal elections, and sponsored hate speech.

According to the Iceberg Digital study , released in 2020 by Kaspersky in partnership with the Latin American research company Corpa, 62% of Brazilians at the time did not know how to distinguish fake news from real news[1].

What may generate a high level of insecurity for some, becomes a tool for manipulation and methods of amplifying hate speech and radicalized behaviors for others.

In this context, Bill 2630/2020 emerges , which establishes the Brazilian Law of Freedom, Responsibility and Transparency on the Internet [2], being nicknamed the Fake News Bill . However, the bill seeks more than merely combating the dissemination of false news.

Holding providers accountable as a central objective.

In truth, the core of the bill is to create mechanisms for auditing, monitoring, and holding accountable application providers such as social networks and so-called private messaging services (e.g., WhatsApp and Telegram ).

Here, it is necessary to briefly differentiate between the types of existing providers, since the correct identification of entities present on the Internet is essential for fair regulation. 

As Souza and Lemos point out, it is essential “in order to be able to affirm the corresponding liability regime, especially when it comes to analyzing the behaviors performed by users of the services provided and the degree of interference of the provider over them” [4].

The Superior Court of Justice adopts the understanding that internet service providers “are those services linked to the functioning of this worldwide computer network, or through it” [5]. In this sense, the types of providers are subdivided as follows:

• providers of backbone;
• Access providers;
• Hosting providers;
• Information providers;
• Content providers.

Federal Law No. 12.965 of 2014, better known as the Marco Civil da Internet [3], in its article 5, differentiates between two types of provider activities: Internet connection and Internet applications.

The first refers to the so-called Backbone, which in Brazil can be exemplified by Vivo, Net, Claro, and others responsible for providing internet connectivity.

For the purposes of the provisions of PL 2630/2020, it is evident that it was concerned only with the so-called Information Providers that create content, such as the users themselves, and content providers, that is, “that make available on the network the data created or developed by information providers or by the web users themselves”. [5] These types are also called Application Providers.

The pursuit of holding application providers accountable for content shared on their platforms is not new to the Brazilian legal system.

The Brazilian Internet Bill of Rights (Marco Civil da Internet) addressed this issue, particularly in articles 18, 19, and 21, and categorically states that providers are not liable for content, except for failure to remove such content in violation of a court order or after notification from the victim of sexual content disseminated without their consent.

Thus, the MCI adopted in its structure the so-called subjective responsibility of providers, that is, they will be held liable when they do not adopt effective measures to remove harmful content, after becoming aware of it, either through notification from the victim (article 21 of the MCI) or by court order.

In this sense, the mere existence of false, offensive, or illegal content would not, in principle, generate strict liability for the provider.

The new bill discussed in this article seeks to create mechanisms that highlight the importance of effective management by providers regarding the content on their internet platforms. 

This includes the obligation to issue annual reports for all those with a user base of 2 million or more. There is also a need to implement best practices for transparency and oversight, especially regarding sponsored content, i.e., where a user makes payments to the platform for the dissemination of news, products, services, and information.

The prohibition of the mere existence of fake accounts, for example, under penalty of liability by a sanctioning body, is perhaps an import of the objective liability provided for in summary 479 of the STJ [6], in which financial institutions are liable for damages caused by fraud and crimes of third parties, resulting from internal fortuitous events.

Therefore, the mere existence of a fraudulent account makes the person who had the duty to verify its authenticity liable.

Possible consequences

It is important to emphasize that creating methods where the provider has the duty to oversee, monitor, and consequently filter content is somewhat worrisome, as it encourages the idea of ​​creating a platform that is both the overseer and the judge of its own cases. 

In this sense, fundamental principles such as freedom of expression and free thought can be sidelined by mere ornamentation, subject to the discretion of private entities that will have not only the possibility, but the duty to constantly monitor the activities carried out by their users.

While acknowledging the importance and relevance of what is discussed in Bill 2630/2020, it is necessary to pay attention to the consequences that a bill can bring. 

What should be sought are methods that hold application providers accountable for negligence, interference, and collusion in illegal activities. This should guarantee the free development of personality, freedom of expression, and the dignity of the human person, combating hate speech, the dissemination of fake news, and bringing transparency to content sponsorship.

While the bill discussed in this article does not exhaust the subject and the need for regulation of providers, you can continue and delve deeper into the topic. To do so, check out the article: The Role of Social Networks in the Dissemination of Fake News and the Right to Freedom of Expression , available here on the IDP Law Blog.

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References

RODRIGUES, RENATO. Research: The Hidden Dangers of the Internet. Kaspersky Daily, 2020. Available at: Accessed on: 19/09/2023.[1]

Brazil. Federal Senate. Bill PL 2630/2020. Establishes the Brazilian Law of Freedom, Responsibility and Transparency on the Internet. Available at: . Accessed on: 19/09/2023.[2]

Brazil. Federal Law No. 12.965, of April 23, 2014. Marco Civil da Internet (Brazilian Internet Bill of Rights). Establishes principles, guarantees, rights and duties for the use of the Internet in Brazil. Available at: . Accessed on: 19/09/2023.[3]

SOUZA, CARLOS AFFONSO. LEMOS, RONALDO. Marco civil da Internet: construção e aplicação. 1. ed. Juiz de Fora: Editar Editora Associada Ltda, 2016. [4]

Brazil. Superior Court of Justice. Resp 1316921/RJ. Rapporteur Justice Nancy Andrighi. Available at: Accessed on: 09/19/2023. [5]

Brazil. Superior Court of Justice. Summary 479. Available at: . Accessed on: 19/09/2023. [6]

MORAIS, FERNANDA. The Role of Social Networks in the Dissemination of Fake News and the Right to Freedom of Expression. IDP Blog. Digital Law. Available at: . Accessed on: 09/19/2023. [7]