For the Public Ministry, it is necessary to render the MP without effect until the actions contesting the measure have their content analyzed by the Court. The document is signed by Attorney General Augusto Aras and was sent to the STF this Monday (13).
The MP, which has the force of law, was issued on the 6th, on the eve of acts in favor of the Bolsonaro government and anti-democratic measures.
It changes the Marco Civil da Internet, which regulates the use of the computer network in Brazil. The text establishes “rights and guarantees” for users of social networks and defines rules for content moderation. According to the rule, there must be a “just cause” and “motivation” in cases of “cancellation or suspension of features of accounts or profiles maintained by users of social networks” (read more below about the changes made by the MP to the Marco Civil da Internet).
Parliamentarians and experts criticize the MP that messes with the Marco Civil da Internet
Also according to the MP, the user has the right to “adversary, full defense and appeal” in cases of content moderation, and the social media provider will have to offer an electronic channel dedicated to the application of these rights.
“The sudden legal amendment of the Civil Law for the Internet by MP 1.068/2021, with a tight deadline for adaptation, and provision for immediate liability for non-compliance with its terms generate legal uncertainty for the companies and providers involved, especially in a matter with so much evidence for the social interaction nowadays”, stated the PGR in the opinion sent to the STF.
Also in the opinion, Aras stated that the issue should be widely debated both in the National Congress and when the court is going to analyze the actions that question the text.
“Although the Presidency of the Republic and the Federal Attorney General’s Office have already expressed their opinion on the request for a precautionary measure, it is prudent that the issue be widely debated both within the National Congress itself – proper place for discussions involving a high degree of accountability — how much, in the judgment of this direct action of unconstitutionality, by technicians, representatives of civil society and by the companies that host the contents of social networks, in order to provide subsidies and technical elements essential for the correct understanding and solution of the matter from the point of view of the alleged unconstitutionalities”, he declared.
The PGR also asked that it have the opportunity to express itself again on the merits of the actions – that is, the request to annul the MP for unconstitutionality – “after the collection of the necessary elements for a safe position and based on a more complete factual and legal framework on the demand”.
“The short term for the manifestations, added to the lack of all technical and legal elements related to the contested state act, may lead both this ministerial body and the Federal Supreme Court to adopt an a priori solution that is not compatible with the reality of the normative framework presented or that does not stick to all aspects of the matter under discussion”, he pondered.
Aras quoted in the document an excerpt from the vote of Minister Celso de Mello in the analysis of the legality of the fake news inquiry – which investigates the dissemination of fraudulent news and attacks on ministers of the Court.
In the excerpt, the then dean pointed out that freedom of expression does not allow the propagation of hate speech or offenses, nor does it allow demonstrations that offend fundamental rights. In this context, he pointed out that the MP hinders actions to prevent the situations mentioned by the minister.
“Provisional Measure 1.068/2021, by establishing, in the current legislation, an apparently exhaustive list of cases of just cause for exclusion, suspension or blocking of user account (profile) or dissemination of content generated by users on social networks, hinders the action of barriers that avoid situations such as those described above by Minister Celso de Mello”.
The information provided by the Attorney General’s Office responds to a request from Minister Rosa Weber, rapporteur of seven actions that question the measure, presented last week by six parties and a senator. An eighth action on the same theme was presented this Monday by the Brazilian Bar Association (OAB).
‘Censorship’ and ‘just cause’
The MP text edited by Bolsonaro also provides for the right to “refund the content” published by the user – including texts and images, when required – and the restoration of the account, profile or original content in case of “undue moderation “.
“The right to return the content made available by the user on the social network and the requirement of just cause and motivation in cases of cancellation or suspension of features of accounts or profiles maintained by users of social networks, as well as in cases of exclusion of content,” informed the General Secretariat of the Presidency.
The MP also prohibits social media providers “from adopting criteria of moderation or limiting the scope of the dissemination of content that imply political, ideological, scientific, artistic or religious censorship”.
“In observance of freedom of expression, communication and expression of thought, the exclusion, cancellation or suspension, in whole or in part, of the services and features of the account or of the user profile of social networks may only be carried out with just cause and motivation”, states the text.
Among the possibilities of just cause for the deletion, cancellation or suspension of the account or profile are:
- Accounts created with the purpose of assuming or simulating the identity of third parties in order to deceive the public, “with the exception of the right to use a social name and a pseudonym and the explicit humorous or parodic mood”;
- Accounts “mainly managed by any computer program or technology to simulate or replace human activities in the distribution of content to providers;
- Accounts that offer products or services that violate patent, trademark, copyright or other intellectual property rights.
In the case of exclusion, suspension or blocking of content disclosure, the MP considers the disclosure of some issues as just cause, including:
- Nudity or explicit or implicit representations of sexual acts;
- Practice, support, promotion or incitement of crimes against life, pedophilia, terrorism, trafficking or any other criminal offenses subject to unconditional public prosecution;
- Supporting, recruiting, promoting or aiding criminal or terrorist organizations or their actions;
- Practice, support, promotion or incitement to acts of threat or violence, including for reasons of discrimination or prejudice based on race, color, sex, ethnicity, religion or sexual orientation.
Just cause is also considered in the case of “application of the victim, his legal representative or his heirs, in the event of violation of intimacy, privacy, image, honor, protection of their personal data or intellectual property” .
According to the Presidency, the changes are a way to ensure “users’ rights to freedom of expression and broad defense and contradictory in the social media environment.”
The Secretariat of Communication of the Presidency of the Republic (Secom) published on its social network that the measure aims at “greater clarity regarding ‘policies, procedures, measures and instruments’ used by social network providers to cancel or suspend content and accounts”.
The publication also says that the intention of the measure is also to combat “the arbitrary and unreasonable removal of accounts, profiles and content by providers”.
The measure gives providers a period of 30 days, counted from the date of publication of the MP, for them to adapt to the new rules.