Freedom of Expression and Fake News

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Commentary and reflections on Bill 2.630/20


In the essay “Truth and Politics”, Hannah Arendt[I] argues that politics is the field of competition between narratives. The democratic regime is, by definition, a form of government in which the validity of the norms propagated by the State depends on their recognition by free and equal citizens. The legitimacy of the government rests, ultimately, on the “opinion” of the governed, holders of popular sovereignty. The democratic formation of public opinion is therefore an essential foundation of the democratic regime. For the deliberative process to occur satisfactorily, information on facts and events and a diversity of opinions and points of view on topics of interest to society must be available to the public.

The current horizon of political communication presents numerous challenges for the democratic construction of public opinion and political will. On the one hand, we have unequal access to traditional means of communication, which marginalizes certain social groups and ideas that are not consistent with the status quo. On the other hand, after the emergence of networks and social media, we witness the proliferation of hate speech and the spread of false news and misinformation.

Innovations in information technology have extended to common citizens a more relevant role in the collection and circulation of symbolic goods, allowing greater participation in the process of forming public opinion. Citizens thus became disseminators of information and interpretations necessary for the establishment of political (and other) judgments. Technological transformations have had significant impacts on the democratic role of the press. Part of the literature interpreted this process as an opportunity to strengthen democracy, especially with regard to the transparency of the acts of political authorities and the plurality of points of view. The multifunctional resources and the high capacity to acquire information without a mediation structure would reduce participation costs and could even expand the diversity of perspectives present in the public sphere.

However, not everything is rosy in the universe of mediated communication. Numerous recent episodes have been marked by allegations involving mass sharing of messages with disinformation content, manipulation of facts and historical revisionism. Whether in electoral processes, as in the US (2016) and Brazil (2019), or in the crisis caused by the COVID-19 pandemic, the impact of artificially boosting content is undeniable. Suspects of electoral crimes involving fake news dissemination networks were and continue to be investigated – without, however, civil liability or more serious political consequences.

deliberate lies

According to Recuero and Gruzd[ii], the public sphere has been invaded by a series of inauthentic information, which has the explicit purpose of intervening in the construction of public opinion, favoring commercial and political interests. Unlike misinterpretations or factual errors, such content has a clear interest in misinforming. Himma-Kadadas[iii] points out that the groups that engage in the dissemination of deliberate lies promote a kind of informational war, with their own strategies and mechanisms. In order to distort reality and strengthen certain political alternatives, the contents make use of a journalistic narrative and the aesthetic components of news materials.

 In a 2018 article for the Bloomberg website, David Biller[iv] suggested that the context of strong political polarization, combined with the increased use of social networks as a privileged source of information, signaled that the election that year in Brazil could be definitively impacted by the use of fake news. In addition to what had already been known during the electoral period, there are, today, indications of the continuous action of a structure linked to the Presidency of the Republic for the dissemination of false information and hate speech, whose funding networks have been uncovered by the institutions of control of the State and society. Victims are not just opposition politicians like Fernando Haddad and Manuela D'ávila. Journalist Patrícia Campos Mello, from Folha de São Paulo, and digital influencer Felipe Neto were recent targets of networks linked to the Bolsonaro group.

Recognition of the seriousness of the situation, with disastrous consequences for democracy and institutions, seems to have finally reached the Judiciary and Legislative powers. The Federal Supreme Court has been facing the effort to deconstruct the mass dissemination structure of false information. Through the fake news inquiry, opened to investigate threats to the ministers of the Court, the STF determined the blocking and deletion of accounts identified with attacks on democratic institutions. The National Congress, in turn, in order to stem the wave of disinformation content, installed a CPI to investigate these networks and has been discussing legal measures to regulate communication on social networks and through private messaging services on the Internet.

Fake News Bill

Bill 2.630/20, authored by Senator Alessandro Vieira (CIDADANIA/SE), intends to establish the Brazilian Law of Freedom, Responsibility and Transparency on the Internet. Approved in the Federal Senate, the project is now being processed in the Chamber of Deputies, under the rapporteur of deputy Felipe Rigoni (PSB-ES). In order to prevent social networks and message sharing services from being manipulated or causing personal or collective damage, legislators intend to discourage the creation of inauthentic accounts, disseminators and unlabeled dissemination networks, as well as establish the identification of sponsored content and /or with massive reach.

The regulation focuses, notably, on the mass distribution of content and artificial boosting strategies, whose responsible must be observed by the companies providing these services. In its article 14, the project makes mandatory the declaration to the provider when using artificial disseminators, leaving to the companies the inspection and the exclusion of the accounts that do not comply with the norm. Although it is not explicit in the proposal, the purpose of such rules seems to be to identify transmission chains of false information or content that violates the law.

However, the project also significantly limits the sharing of content by users themselves. In its article 13, the proposal establishes at 5 the number of users or groups to which an account can forward messages (a number that will be reduced to 1 during election periods). In the same sense, it is determined that the recipients of mass messages authorize their receipt or inclusion in a group before delivering the content.

The regulation reaches the legal entity accounts of the public power. These accounts must provide features for reporting misinformation, as well as labeling sponsored content. Publications by official profiles must be public. The State must also promote the training of its servants for the safe use of these resources and create educational campaigns on the importance of combating misinformation (Chap. III, arts. 19-24).

Much of the responsibility for controlling and verifying disinformational content should fall on the companies that administer the applications. A concern present in the bill is, therefore, the transparency of the actions carried out by such companies. Providers will be responsible for making available, among others, information on accounts removed, complaints received, number of inauthentic accounts and banned disseminators, as well as the identity of content sponsors. Data on engagement and interactions related to content that violates the law should also be available. Article 7, VIII, §1 determines that “the reports and data made available must point out the relationship between artificial disseminators, accounts and content dissemination, so that it is possible to identify articulated content dissemination networks”.

Freedom of expression, privacy and regulation

Since the beginning of the deliberative process in the Federal Senate, the PL has been the object of countless criticisms. The production of good laws demands time for the debate and presentation of alternatives. However, the urgency with which the issue is presented in the Brazilian public sphere requires, at the same time, agility in the search for institutional solutions to deal with threats to democracy. Companies, organized civil society and experts from different areas warn of the risk that the proposal for regulation represents for constitutional values ​​and principles such as the right to privacy and the free expression of ideas.

In its article 4, the project makes an important effort in the sense of defining controversial terms, such as the idea of ​​disinformation, which will be the object of the legislation. The proposal also seeks to build mechanisms that provide transparency to the performance of providers and regulates the use of social networks by public power actors – lacking, today, more effective control, with harmful consequences –, subjecting them to the principles of public administration, preventing them, for example, from restricting access to their publications.

However, there are still numerous issues to be revisited in the process of processing the bill in the Chamber of Deputies. The literature that debates the scope and limits of freedom of expression has a strong presumption against regulating the free expression of ideas when based on the content of speech. This concern is justified by the risk that control institutions may be allowed to delete messages because they disagree with their point of view, exercising political control over the public debate. In this regard, the space given by the PL to discretion in the moderation instruments to be constituted by companies is disturbing. Even if the objective is not explicitly to control the content, in certain circumstances, the providers of services regulated by law are exempt from even notifying users of the exclusion of content (art. 12, § 2).

Even though article 12 determines that application providers provide users with the possibility of appealing against decisions regarding content restriction, the requirements for appeals and how they will be judged lack a clearer definition. The large number of resources and the complexity of the criteria used to define violations of legislation may make self-regulation difficult and give arbitrary power to the companies responsible for the applications.

In order to minimize the possibility of arbitration, the project institutes a kind of two-step regulation (or a regulated self-regulation). In addition to the providers, who would exercise a kind of self-regulation, there would also be the creation of an Internet Transparency and Responsibility Council, established by the National Congress with the participation of the State, companies and civil society. The Council would be responsible for monitoring compliance with the measures provided for in the law, having as its attribution “the carrying out of studies, opinions and recommendations on freedom, responsibility and transparency on the internet” (art. 25).

In an opinion, the federal councilor of the OAB, Sandra Krieger Gonçalves, states that this council would have the purpose of “defining, including and meritorious, what is disinformation. In essence, what is apparently just an advisory body seems to create, in fact, an information regulatory agency, which is, from every point of view, reckless for a Democratic State of Law”[v]. The alternative, for the counselor, would be to grant the Judiciary the prerogative of civil liability of the disseminators of false news.

Experience, however, may not recommend giving the courts exclusive prerogative in this matter. Judges are not exempt from bias, particularly when judging sensitive issues related to free expression of ideas and political debate. Moreover, in controversial matters, it is to be expected a profound disagreement among magistrates in the interpretation of the law. The Council certainly deserves improvement and a more in-depth and sustained debate could contribute to this. The multiplication of regulatory mechanisms, which could exercise mutual control, and the constitution of criteria as objective as the subject allows, perhaps represent a more adequate path to the problem of discretion.

Criticisms of the project also cast doubt on article 10, which deals with the storage of records of mass forwarded messages. Keeping these records would allow providers and authorities to trace the origin of reported content and eventually sanction users considered responsible for its dissemination. In addition to the technical problems involved in structuring this system, the retention of traceability metadata also represents a risk for the protection of privacy. There is extensive debate about the advisability of entrusting companies with the possession of data that can be mobilized to favor commercial and political interests. Furthermore, we cannot rule out the possibility that personal information is used by State authorities indiscriminately. The recent effort by the group now at the Planalto Palace to control the Federal Police and the Attorney General's Office is cause for concern and inspires additional care. In its current formulation, the PL would even be in contradiction with the General Law for the Protection of Personal Data (nº 13.709), approved by Congress in 2018.

Conclusion: public debate cannot be managed

We do not intend, with the considerations presented above, to suggest that the proposal is simply abandoned or summarily rejected. We recognize the urgency of establishing clearer norms and criteria to regulate interactions in social networks and services for exchanging private messages, in order to avoid corruption in the formation of public opinion and electoral fraud. The current context of mediated communication on the internet demands rules from society and institutions to curb hate crimes. It is also urgent to develop institutional mechanisms to prevent money or political power from controlling the circulation of information. We must be farsighted, however, when drawing up such rules and granting companies or the State the power to regulate the expression and communication of ideas. It is fundamental that such rules do not constitute structures for managing public debate or that they give rise to censorship of ideas and opinions or jeopardize the right to privacy.

*Rebeca Trinidad is a graduate student in the Social Sciences course at UFBA; Izabela Simas is a graduate student in the Social Sciences course at UFBA; Renato Francisquini Professor at the Department of Political Science at UFBA.


[I]Arendt. Hannah. “Truth and Politics”. In: _______. Between the past and the future. São Paulo: Editora Perspectiva, 2007.

[ii] Recuero, Raquel; Gruzd, Anatoliy. Political Fake News Cascades: A case study on Twitter. Galaxy, Sao Paulo, n. 41, p.31-47, Aug. 2019. Available at:>. Accessed on July 07, 2020.

[iii] HIimma-Kadakas, M. Alternative facts and fake news entering journalistic content production cycle. Cosmopolitan Civil Societies: An Interdisciplinary Journal Vol 9 No 2 (2017). Accessed on July 05, 2020.

[iv]Biller, D. 2018. Fake News Risks Plaguing Brazil Elections, Top Fact-Checkers Say. Available at: news / articles / 2018 – 01 – 09 / fake – news – risks – plaguing – brazil – elections – top – fact – checkers – say.

[v] STATE AGENCY (Itatiaia). Under debate in Congress, the Fake News Bill divides the Brazilian Bar Association. 2020. Available at: Accessed on: 18 Aug. 2020.

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