The Brazilian Bar Association (OAB) sent an opinion to the president of the Senate, Rodrigo Pacheco (DEM-MG), classifying the provisional measure that tightens the rules for the removal of content on social networks as unconstitutional. Pacheco is considering returning the MP signed by Bolsonaro on the eve of the September 7 demonstrations.
The provisional measure amends the Marco Civil da Internet, of 2014, to avoid what the Planalto classified as “arbitrary and unreasonable removal” of content. The publication of the standard was considered as a nod by Bolsonaro to his digital militancy, which has been subject to removal of contents with false information. The president’s stance in the demonstrations, however, led Pacheco to consider returning the measure.
The MP does not prohibit the removal of content from social networks, but tightens the rules for this to be done. By the text, social media platforms such as Instagram, Twitter and Facebook will be required to make the criteria used publicly available. Parliamentarians and experts criticized the measure and stated that the norm limits the capacity for moderation and facilitates the propagation of fake news.
For the OAB, the measure is unconstitutional in formal and material aspects. In the institution’s assessment, Bolsonaro failed to comply with the Constitution and did not observe the need for relevance and urgency, conditions required for the edition of provisional measures, which become valid immediately after publication. In addition, lawyers point to the violation of constitutional rights, such as freedom of expression and information, in addition to identifying a risk of spreading false news on the internet.
The document is signed by the president of the OAB, Felipe Santa Cruz, the president of the National Commission for Constitutional Studies of the institution, Marcus Vinicius Furtado Coêlho, and the president of the Data Protection and Privacy Commission of the OAB of Rio de Janeiro, Estela Aranha.
The opinion points out at least five arguments for the MP’s unconstitutionality, such as the non-existence of relevance and urgency and the violation of free competition and free enterprise. One of the provisions of the MP, in the assessment of the OAB, goes against the argument of freedom of expression used by Planalto to change the legislation. This is because the rule creates actions to oversee the moderation activity of social networks, providing for sanctions such as the prohibition of companies’ activities on the internet.
“In fact, it is possible to conclude from the comparison of the Provisional Measure and the motivations expressed by the Executive Branch that the objective of the measure is to prevent social network providers from acting spontaneously to combat true abusive and illegal manifestations against the democratic order, the electoral process or public health that are, however, sympathetic to the preferences of the current government. It also seeks to curb the moderation of hate speech, which is currently instrumentalized in political and partisan radicalization, eroding democratic public political debate. reveals a severe defect of purpose deviation contrary to the principles of public administration defined by the Federal Constitution”, says the analysis of the OAB.
Last year, the Senate approved a bill to combat the spread of fake news on social networks. The proposal was criticized by companies and specialists and is at the Chamber. For the OAB, however, the changes should be discussed through this bill in Congress, and not imposed by an interim measure. An MP takes effect right after the signature of the President of the Republic, but it loses its validity if it is not approved by the Legislative within a period of 120 days. The return by the president of the Senate would suspend the effects of the act immediately.