The PL of fake news

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By RENAN QUINALHA*

Is it possible to think of a regulation of fake news that does not harm freedom of expression?

This is the great challenge of our time. We have a context that is very serious. This isn't exactly today. We saw the elections in the United States when Trump won and Facebook was mobilized for that, we saw the 2018 election here in Brazil, Brexit too. Anyway, there are several episodes that we see from the point of view of the democratic environment, the public space, that these social networks have played an increasingly relevant role and increasingly less controlled by democratic, social control, which undoubtedly none compromise democracy. But it is not because we have this problem that any attempt at a regulatory framework, any proposal, will do. It is not this urgency and the importance of good intentions that will guarantee the quality of this regulatory framework. Here in Brazil, this debate has even gained strength now precisely because of the pandemic, we have seen that it is even a question of risk to people's lives. The question of the chloroquine drug has been published, in short, a series of anti-scientific information, without proof, and then it ends up gaining strength. But this is very bad for the law as well, making legislation at times of high pressure from public opinion generally does not come out well. There is a risk of this occasional legislation becoming something of criminal populism. You run, respond with a new typified crime, increase the penalty, as if that would solve it, but deep down you make a patchwork quilt there without any systematicity between the norms. So a little more caution is also needed to think about how these fundamental rights of freedom of expression, protection of honor, people's image are related to this dissemination of fake news.

There was already the project that was presented by Alessandro Vieira, which is this PL 2630 in the Senate, but the same text, with a few differences, was also presented in the Chamber of Deputies by Tabata Amaral and Felipe Rigoni. And the two projects are very similar and they bring exactly this idea of ​​a Brazilian law of freedom, responsibility and transparency on the Internet. According to these projects, there in the exposition of reasons and in their text, there are three objectives outlined. The first is the fight against misinformation, the project does not use fake news which is an anglicism (and it's better not to use it, because misinformation is wider). The second is to increase transparency regarding these application providers (or applications, as the text of the law says). And discourage inauthentic accounts, that is, fake accounts that keep spreading this misguided, false information. We need something in this sense that gives more concreteness to other laws that exist in Brazil and that manage to combine, which is very difficult, these fundamental rights that I was mentioning. So freedom of expression is enshrined in the Constitution in high regard there, but it always appears somehow relativized and limited. So the Constitution guarantees freedom of expression, but anonymity is prohibited, for example. This is in the Constitution, guaranteeing freedom of expression, but this is not a license to commit crimes, for example, crimes against honor, which in these cases of misinformation appear a lot: slander, defamation, insult. It also has a free speech ban when you post hate speech content.

Our freedom of expression does not have the same consecration, despite being very important, it does not have the same consecration as in the United States where total freedom prevails and you are only responsible later. So this project tries a little to get at this issue, the way this freedom of expression is set, and tries to bring some instruments for control. But the big problem with this project, so relevant, which changes so much in our lives, is not only in the electoral issue, but in our concrete life, because everyone lives today buried in social networks, exchanging messages on WhatsApp, etc. It is to do this first, in a hurry and without debate, because Congress is at a moment, due to the pandemic, in which there are no commissions functioning regularly, there are no public hearings, which are participation mechanisms, which could further oxygenate the proposals. But the project also has a series of vices there, problems. And we no longer know what the project is, because this last week the report by Senator Ângelo Coronel, who is the rapporteur of this process, of this PL in the Senate, began to be discussed. So there are a series of issues that we don't know exactly how it turned out in the end, because this report has not yet been released, but what has already appeared shows that there are very serious points there. The first is that there is no technological neutrality in the project. The project is divided into themes that are clearly dedicated to sections on social networks or certain specific applications, and specific social networks, so you look there and you say “this here was made for Facebook”, “this here was made for Whatsapp". But this is a big problem because the law cannot be thought of according to its target, the law needs to be systematic to guarantee regulation, which will not serve only at that moment and for those actors who are now in the public sphere. You need to think that there is a process of technological innovation, development and that soon this project will also have to cover other types of platforms in this legislation. Also, you don't look at the ecosystem, it's a project that focuses a lot on the platforms for these intermediaries who are the platforms that take information and content and take it to other people. So they connect third parties, that's what they do, and they don't look at the financing network that we know now in this STF inquiry that plays a fundamental role in spreading fake news, who pays for it. And then a very serious point is precisely that this accountability regime is changed, which was already there in the civil framework of the Internet, which understood that these platforms that are intermediaries are not responsible for content. And this project is now changing that, that is, it puts the platform in charge of looking at the content to see if the content is false information or not.

But although it seems that there is a penalty for platforms with this task, but deep down we are giving these platforms unlimited power to moderate content. We now have a mechanism for private moderation and private censorship of the platforms, on top of the content that people are posting there.

But do you think about the scale of how this will change when you are forcing platforms to do this. They will have to do this all the time, that is, everything that is being inserted on the platforms, they will have to start making certain filters. And then if you throw all this responsibility onto them without any kind of control mechanism on the part of the State, of state regulation, it is very dangerous, because it seems that you are solving the problem, but you are just outsourcing, and outsourcing for private logic. We do not know how this control will be carried out if we do not have regulation. So it's obvious that a more interesting project goes through a self-regulation process, it doesn't have to be entirely the responsibility of the State, it also needs to involve these private agents. But you can't get to the extreme of throwing everything in their lap, because then the state will be giving up control, supervision of something that is fundamental, because it involves rights and freedoms that are fundamental to citizens. Especially because this bill provides for sanctions that are very heavy for these platforms, ranging from a warning and a fine, in article 28 it says, to a ban on carrying out activities in the country. That is, it will not be able to act, imagine platforms that have millions of users in Brazil. So with that you will make the platforms (this happened in other places, in France, in Germany) they will end up doing more control, more moderation of what needs to be done, than would be reasonable, as a precaution, not to lose the possibility of operating in the country. So I think this is a big problem that has been widely discussed by several organizations that debate law on the net. But, in addition, the project, from the point of view of legislative technique, is bad because the concepts are very vague and we know that legislation with a very flexible and vague concept is a big problem, because it does not solve anything either. It outsources and then plays for the law enforcer, for the judiciary that is still learning to deal with this issue. So, for example, the concept of disinformation (which would be the corresponding or which would encompass what is fake news) says there in article 4: “disinformation is content in part or in whole, unequivocally false or misleading, subject to verification, placed out of context, manipulated or forged, with the potential to cause individual or collective harm, with the exception of a humorous or parody spirit”. That is, you finish reading this sentence, this type, you no longer remember the beginning, because it is a series of commas, of commas, that is, what is “unequivocally false”?

You say it's "humor", it's "parody", and then you take what it is out of context? Can a political critique of an authority then claim to be out of context? It's very subjective. Same thing for “inauthentic account”. The project defines it as an account created or used for the purpose of spreading misinformation or assuming a third-party identity to deceive the public, but what is “disseminating information”? So Bolsonaro's networks are inauthentic accounts because he disseminates disinformation week after week in relation, for example, to the pandemic. More care is needed, I think this text needs to be further refined and therefore a calmer, more serene legislative debate. And it is necessary to listen more to civil society, those who study this topic, to debate to improve this text. Another problem is that there is no due process, that is, they remove your content there because such a private platform understands that it is misinformation, so what? The project only says the following: you can have three months, at least three months have to be a window for you to appeal. But it doesn't say anything about who judges, based on what, what are the criteria for this. And then came the report that was discussed at the end of last week, one of the data of this report, which is the possible work of the rapporteur, Ângelo Coronel, that if you have a lawsuit you would already have to remove that, without it being appreciated and judged, before the injunction, including the judiciary. That is, you end up with the principle of presumption of innocence. Whoever filed the action already has to remove it. So it's a series of somewhat haphazard initiatives. Another thing in the report is that there would have to be identification and location, so every user has to provide a document such as RG, CPF, with photo and proof of address. This is reckless, because from the point of view of data protection, which is a topic that we discussed in a previous episode. Imagine if you, all your Google searches are there linked to your CPF and if it's just information that circulates. We know how easy it is to access a CPF, they sell CPF CDs out there. So it is necessary to take care of safeguarding rights, privacy, intimacy, honor and freedom of expression. And as much as we have to have a bill, it cannot be just anyone. It is not just any initiative that will help fight it, because it may even be ineffective.

You have some mechanisms on the networks for you to mark a publication saying that it violates the internal policies of these networks, but what they find out from there is just the compatibility of the content with the internal policy defined by it, and that all users adhere to it by submitting to the start using the network. And what involves discussions around this goes to the judiciary. So “oh, it wasn't applied correctly”, “it was applied in a different way” and then the judiciary calibrates.

It has this dimension that there is no longer even the internal policy of the platforms, it is the criminal legislation. You already have criminal types today in Brazil, such as crimes against honor, which in general are those that are characterized when you are imputing someone a crime, saying false news, slandering. It's a private initiative crime, so it's the person who needs to open a police report, start this investigation procedure and then this can become a criminal action. That's one thing, then you can break secrecy there, get information, but that's all with the judiciary. And the report that was already out that was circulating around this PL also brought worrying data, for example in relation to this topic that it was possible for you to break secrecy in the investigation phase without any kind of judicial authorization. That is, it is something that is quite reckless, because they are exceptional procedures that if we now think that they are justified, because in fact there is an industry of fake news, of disinformation, which is very harmful, in various scales and dimensions, you it will end up justifying exception devices that will later turn against all these guarantees. So it takes great care to understand that the exceptionality of this moment is not the best way to guide legislation that will serve a lot of things. And besides, it seems to me that it's quite bad for us to guide this debate only in the legislative and criminal field. There is a bit of this belief that criminal law solves all the problems we have and that we just need to create a crime and increase the penalty that this will solve. And it won't fix it. Countries that have criminalized disinformation in this sense are crowding prisons and judicial processes and are not reducing the number, because these fact-checking agencies have produced data and show that it is no use just criminalizing. Obviously, legislation needs to be improved and there is room to do so, but more than that, I think it also needs to discuss media and digital literacy, education, and the free press needs to be strengthened. Eugenio Bucci wrote a text in Folha last week along these lines, that the free press has verification protocols, that has journalistic ethics and such that you get through these mechanisms also calibrating the public debate.

Disinformation comes for free on WhatsApp, on social networks, and the content that takes work to produce because it depends on research investigation, on a series of criteria, it ends up needing some form of funding and it's still that, you pay, to sign. So I limit access and that ends up being bad from the point of view of restriction itself, that access. The project mentions a point that is transparency, this has some provisions in the project that are important and that need to advance further, which is precisely in the sense of also showing how paid content is being disseminated, advertising itself, on these pages, and the interest around it, economic.

So these mechanisms are all new, we are talking about things that have emerged in the last few weeks of a current debate and which is extremely relevant. But I think it's very important to put this on record, because in the next few days the discussion around this PL will return and we are very clear that calm is needed. As urgent as it is, we need serenity so that we can have a good bill, good legislation that does not need to be re-elaborated a year from now, re-discussed because it was made in the heat of events, without further reflection, without further rationality.

*Renan Quinalha is a professor of law at Unifesp. Author, among other books, of Transitional justice, concept outlines (Other expressions).

Article based on a conversation with Laura Carvalho on the podcast channel However.

 

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