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STF becomes “sheriff of fake news” while Brazil does not create specific laws
Report published on the Terra portal addressed the need for Brazil to have specific laws to combat so-called fake news. The text features a comment from Dr. Matheus Puppe, partner in the TMT, Privacy and Data Protection area at Maneira Advogados.
STF becomes “fake news sheriff” while Brazil does not create specific laws
Without specific law, the Court's decisions in cases such as those of Monark, Carla Zambelli and Allan dos Santos could create the basis for future legislation
Ingrid Oliveira
1 Jul 2023
Brazil wants to regulate different abuses of freedom of expression on social networks more appropriately. An eventual approval of the Fake News PL (2630/2020) in the Legislature and the beginning of a vote by the Supreme Federal Court (STF) on the Marco Civil da Internet (Law No. 12,965) arose as two new developments in this regard.
But, as both debates are in a type of “limbo”, Supreme Court ministers are based on interpretations of existing laws to order the digital environment. Thus, they create jurisprudence that can serve as “plan B” until definitive laws on the subject emerge. And this occurs at a delicate time, when the regulation of the digital space is debated on a global scale.
This is the case of influencer Bruno Aiub, known as Monark, who filed an appeal with the STF to try to reverse the decision of minister Alexandre de Moraes, on June 13, who blocked his profiles on social media.
The TSE (Superior Electoral Court) took this case to the STF after identifying, through its sector to combat disinformation, that Monarkmade statements raising doubts about the electoral process. Now, the request from the defense of the co-creator of the podcast Flow — now removed from the program — is that the judge reconsider the blocking or send the appeal for judgment in the Court's plenary.
The status of the PL of Fake News and Marco Civil
In April, Bill 2630/20, known as the Fake News PL, entered the voting agenda. This began in May, but the project's rapporteur himself, federal deputy Orlando Silva (PCdoB-SP), asked the president of the Chamber, Arthur Lira (PP-AL), to remove it from the agenda.
His decision came after a series of attacks and criticisms of the bill, coming both from the opposition and from technology companies such as Google and Telegram. There was speculation that the text provided for censorship of religious content — which Silva denied. He would be rewriting the PL to consider suggestions that would allow it to be approved by the Legislature.
In the case of the Marco Civil da Internet, the STF rescheduled the analysis of the processes on points of the law, approved in 2014, for the second fortnight of June. This was at the request of the rapporteurs of the actions, ministers Dias Toffoli and Luiz Fux. However, so far there has not been a new date to put the matter on the agenda again.
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The Court has four actions in hand that discuss the regulation of social networks. Two of them deserve greater attention because they deal with the constitutionality of article 19 of the Marco Civil. It establishes that big techs such as Google, Meta (owner of Instagram and Facebook) and TikTok can only be held responsible for third-party content if they do not take action after a court order.
One of the cases with Dias Toffoli refers to the creation of a false profile that was used to create family disagreements. The real person, who had the fake profile created in his name, said that Facebook did not act to remove the profile. She took it to Justice, which did not give her a win in the case based on article 19. After an appeal, her request was granted and the article was declared unconstitutional. This made Meta take the case to the STF.
The other two actions to be judged by the ministers question whether messaging apps — such as Telegram and WhatsApp — can be suspended if they do not comply with a court decision. In short, they bring more responsibilities to the companies that provide the platforms, instead of leaving them solely to the users who post the content.
Recent cases of abuse
Monark's case was not the only one in which the STF was more assertive in recent years. In November last year, the social networks of congresswoman Carla Zambelli (PL-SP) were removed from the air during an investigation for undemocratic acts. On the occasion, the parliamentarian posted messages congratulating the truck drivers for the strikes.
Another similar situation is even older: in October 2021, by decision of Minister Alexandre de Moraes, the profiles of the “Terça Livre” channel, owned by blogger Allan dos Santos, were blocked. The decision was part of the “digital militias” investigation, which investigated alleged attacks by Bolsonarists against democracy. The magistrate ordered Santos' preventive detention.
In addition to politicians and influencers, anonymous people have been contributing to the growth of misinformation and hate speech on the internet for years. This has increasingly brought tragic consequences, from deaths in the Covid-19 pandemic to the spread of insults and organizations of violent attacks on schools, such as those that occurred in Vila Sônia (SP) and Blumenau (SC) this year.
A recent study showed that the vaccines used during the Covid pandemic were the main target of fake news about the disease, corresponding to 19.8% of the content. The survey was conducted by researcher from the Oswaldo Cruz Foundation (Fiocruz) Claudia Galhardi in partnership with the Journalism and Communication Research Center at the Federal University of Piauí (UFPI).
For the analysis, scientists were based on 253 fake news related to the disease, disseminated on social networks, websites and messaging applications between March 26, 2020 and March 31, 2021.
The same thing happened during the election period last year. The TSE received 21,012 reports of misinformation on social media from June to October 2022. Of these, 2,368 were about mass messaging, and 15,016 were about user profiles with signs of inauthentic behavior — that is, robots (bots) that simulate human behavior in text.
What is needed (more) regulation on content on the web?
The lawyer specializing in digital law and head of technology at DataLegal, Camila Studart, told Byte that the absence of specific legislation, in itself, does not prevent judicial decisions from being taken based on the interpretation of existing rules. Still, these laws can be challenged by the people involved in the verdicts.
“However, the lack of specific legislation makes any judicial decision more complex and subject to attack,” he said.
If a new law is approved, whether through PL 2630 or other projects in progress, what will be valid for judging cases like Monark, Zambelli and others will be the legislation from the moment it is enacted, and no longer the previous decisions of the STF.
Furthermore, “when a newly enacted law renders previous jurisprudence incompatible with the new law, the new law [in force] will prevail,” Studart explained.
If there is incompatibility, for example, the lawyer explains that courts can “review or reverse previously established jurisprudence” to apply the new law.
Matheus Puppe, data protection specialist at Maneira Advogados, explained that defendants for harmful content on the web can go to court to reverse the decisions. However, the lack of a proper law on this may not be a strong enough justification to give them a win.
After all, the STF's decisions are generally based on already established constitutional principles, such as freedom of expression, the right to privacy and the right to dignity.
“While there is no definitive conclusion, jurisprudence, as a set of decisions and interpretations of laws, serves as guidance for future cases, filling gaps until there is specific legislation”, he said.
The network regulation debate
Although the Marco Civil had established, nine years ago, principles, guarantees, rights and duties for the use of the internet, experts believe that the law was contextualized in a social moment that is not the current one.
In addition to PL 2630, there is another one being processed in Congress on the topic. PL 2582/2023 wants to structure the Brazilian System for the Defense of Freedom of Expression and Integrated Combat against the Practice of Illegal Acts on the Internet. In practice, it wants to define more rights and duties for internet providers and users. The project awaits dispatch from the President of the Chamber of Deputies.
Although with different origins, the main objectives of the two proposals are to obtain stricter moderation against hate speech, disinformation, structural scams and redefine limits of freedom of expression on the internet.
For Puppe, regardless of the result, the urgency to approve a law that promotes legal certainty and reliability in public internet environments is undeniable.
According to him, the caveat is that this law cannot be a copy of other countries, as each one has its own realities. “It is essential that laws and decisions respect democratic principles and guarantee freedom of expression and users’ rights”, he assessed.
Byte approached the Federal Supreme Court to comment on the decisions and impacts on possible legislation. At the time of publication of this report, there was no response.
* With Estadão Conteúdo and Redação Terra
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