President Jair Bolsonaro issued a provisional measure (MP) that changes the Marco Civil da Internet (Law nº 12.965/2014) and rules for moderation of content and profiles on social networks. The full text was published in an extra edition of the Diário Oficial da União (DOU) this Monday (6).
According to the Ministry of Tourism, the objective is “to make clearer the rights and guarantees of users of social networks, which, in Brazil, already total around 150 million people”. “After a joint work by the Special Secretariat for Culture [órgão do Ministério do Turismo] with the Presidency of the Republic, the new text contemplates, for example, the need for providers to indicate just cause and motivate decisions related to content moderation”.
The MP establishes that there will be no exclusion, suspension or blocking of the dissemination of content generated by users or services and features of the profiles on social networks, except in the cases of “just cause”. These hypotheses will also have to be motivated, that is, they must be previously justified.
In the case of profiles maintained on social networks and platforms, it is considered just cause for blocking, suspension or exclusion, situations such as default of the user on any paid network, accounts created for the purpose of assuming or simulating the identity of third parties, with the exception of the right to use the social name, pseudonym or in cases of parody and humor profiles.
Also included in the just cause hypothesis are accounts predominantly managed by a computer program or technology to simulate or replace human activities. In the list with just cause, accounts that offer products or services infringing patents, trademarks and copyrights and intellectual property rights are also considered, in addition to those involved in repeated practices of actions such as nudity disclosure, explicit representations of sexual acts, practice , supporting and promoting crimes such as paedophilia, terrorism, drug trafficking, inciting acts of threat or violence, including violence against animals, inciting acts against public security, national defense or state security, among others.
The text provides for the restitution of the content made available by the user on the social network if the requirements for moderation are not met. The social media provider will also be required to notify the user, identifying the measure adopted and presenting the motivation for the moderation decision and information about deadlines, electronic communication channels and procedures for contesting and eventual review of the decision.
In another device, the MP prohibits the so-called providers of social networks from adopting criteria of moderation or limiting the scope of the dissemination of content that imply political, ideological, scientific, artistic or religious censorship. The standard provides a legal definition of what social networking is, establishing that only platforms with more than 10 million users would be classified in this way. This definition did not previously exist in the Marco Civil da Internet. At another point, the measure excludes from the definition of social network internet applications that are intended for the exchange of instant messages and voice calls, as well as those whose main purpose is to enable the trade of goods or services.
The MP also establishes new provisions that deal with the right to clear, public and objective information about the policies, procedures, measures and instruments used for the purposes of possible content moderation, as well as the right to exercise the adversary, full defense and appeal when it occurs content moderation by the social network provider.
The MP was prepared by the Special Secretariat for Culture, linked to the Ministry of Tourism, and received a favorable opinion from the government’s legal department. Through social networks, the head of the organ, Mario Frias, defended the MP. “Fortunately, today, the president signed the Provisional Measure that guarantees freedom on social networks. Our country will not be held hostage to the censorship of an oligopoly. Not anymore,” he wrote.
As it is a Provisional Measure, the new rules take effect immediately and are valid for up to 120 days. Within this period, it needs to be approved by the National Congress so as not to lose its validity.
Civil society entities are still analyzing the content of the MP, but there are concerns about the definition of new concepts without prior debate. “It doesn’t make sense this definition of social network only those with 10 million users. Also, by MP, the definition of social networking does not apply to instant messaging and voice calling applications, but Facebook does allow voice calling and instant messaging. Instagram also allows it. And aren’t both social networks?” asks Paulo Rená, a professor and researcher in digital rights and a member of the Coalizão Direitos na Rede.
On content moderation, which establishes exceptions for content or an account to be suspended, blocked and/or deleted, the researcher points to possible difficulties in law enforcement. “There are so many exceptions, and such open exceptions, that it will be very difficult to know what is in the exception or not. This norm has a confusing and complex content and it is surprising because there was no debate”, he adds.