Brazilian president changes legislation to limit moderation power of social networks

Brazilian president Jair Bolsonaro has signed a provisional measure to limit the ability of social media platforms to remove content, accounts, profiles and users.

The changes alter the country's current legislation around use of the web - the Marco Civil da Internet, known as the Internet Constitution - which has been in place since 2014. In practice, social media providers such as Twitter, Facebook, Instagram and YouTube will need to follow a series of procedures before deleting content or users that are understood to be violating their terms of use. WhatsApp has not been included in the resolution, as it is not considered as a social networking tool.

Before taking action to exclude users, accounts or content, the companies will be required to, first of all, notify the user in question, then outline the disciplinary action to be taken and the reasons for it, as well as the procedures and channels available to appeal, and the right for the content and accounts to be reinstated.

With the changes, companies cannot exclude posts totally or partially, except for cases where it just cause and motivation is clear. Such cases would include, for example, running accounts created to simulate human activity in content distribution (bots); content in disagreement with child protection laws; nudity, explicit or implicit representations of sexual acts and promotion or incitement of crimes against life and virus or malware distribution.

Announcing the measure in a sequence of four posts on Twitter, the Special Secretariat for Social Communication at the presidential office said the provisional measure is aimed at ensuring freedom of expression, as well as introducing "more clarity regarding policies, procedures, measures and instruments" to ban, suspend and delete content and accounts."

Under the latest changes, the platforms have 30 days to adjust their terms of use and policies. In the event of non-compliance, sanctions range from notifications and penalties corresponding to 10% of the company's income in Brazil to temporary suspension of activities.

In Brazil, provisional measures are instruments that can be used by presidents in urgent cases to enact legislation effective for a maximum of 60 days. They can be renewed once and become law after the approval by the National Congress. In addition to requesting the provisional measure is sent back to the president, the opposition said it will file a lawsuit in the Supreme Court to prevent the changes from coming into effect.

President Bolsonaro made heavy use of social networking platforms such as Twitter and WhatsApp during his campaign in the 2018 elections nvolved in accusations over illegal campaigning tactics using the messaging service. He continued to use the platforms to engage with his supporter base and express his often controversial stance on themes relating to the Covid-19 pandemic.

As platforms acted to remove false information, provide links to reliable sources on content relating to the pandemic and other measures to better inform users since the crisis emerged, Bolsonaro had many of his posts deleted or hidden. YouTube and Instagram deleted his videos publicizing treatments proven to be ineffective, such as chloroquine, while tweets with videos where he gathered crowds and criticized social distancing were also taken down. The Brazilian president began to frequently criticize the platforms, vowing he would address what he felt was a threat to his freedom of expression.

"The urgency and relevance of the measure stem from the fact that the arbitrary and unreasonable removal of accounts, profiles and content by social media providers, in addition to harming the public debate of ideas and the exercise of citizenship, results in a framework of violation of fundamental rights and guarantees such as freedom of expression and the exercise of contradictory and broad defense", the presidential office said in a statement.

"The measure seeks to establish guidelines so that providers of wide-ranging social networks, with more than 10 million users in Brazil, can moderate the content of their social networks in a way that does not imply in undue curtailment of the fundamental rights and guarantees of the Brazilian citizens", it noted, adding the changes ensure "the rights to freedom of expression and to defend contradictory views in the social media environment will be enforced in a more concrete way."

Reacting to the decision, Facebook noted the decision "limits significantly" its ability to tackle abusive behavior on its platform. Twitter argued the Internet legislation in place in Brazil is the result of a "broad and democratic" multi-stakeholder debate, resulting in rules considered as pioneering in ensuring people's rights online and the measures introduced contradict that entire process. Google said it is analyzing the impact of the decision and that it will continue to "work to demonstrate the transparency and importance" of its policies and "the risks people are subjected to" when they cannot be enforced.