Brazilian Senate passes fake news bill

Proposals to tackle the spread of false information online advance; president Jair Bolsonaro considers the possibility of a veto.

Amid concerns over freedom of expression online and user privacy, the Brazilian Senate has passed a bill that sets out provisions to tackle the production and spread of disinformation and defamatory content on the Internet.

This was the fourth version of the bill, which was considerably dehydrated so that it could be voted yesterday (30) and forwarded to the Lower House of the Congress before it gets signed into law or vetoed by president Jair Bolsonaro.

The bill aims to create self-regulation for platforms with more than 2 million users, who would be responsible for creating their own rules and mechanisms to clearly identify content that could be considered false.

According to the proposals, platforms such as Facebook and Twitter should also find ways to identify the dissemination of false content through automated means and limit the number of accounts controlled by the same user.

In addition, there are several requirements companies would have to comply with: among the provisions, firms would need to ban inauthentic accounts set up with the purpose of spreading false content, as well as the use of bots if automated content is not clearly marked as such. The requirement for labeling would also apply for sponsored content.

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There are several requirements around sponsored content relating to political campaigning: social media platforms will be required to disclose details such as amount spent on content online, the ID details of the individual or company responsible for the campaign (which would only be disclosed when companies are legally required to do so), as well as characteristics of the targeted audience.

In the last presidential elections in 2018, a scandal emerged involving then-presidential candidate Bolsonaro over WhatsApp mass messaging during the campaign, with false content aimed at attacking his opponent. This led the Supreme Electoral Court, which has also been targeted by false information online, to recognize it was struggling to deal with the overwhelming wave of fake news in the country.

According to the fake news bill passed by the Senate, messaging apps such as WhatsApp would need to store message chains forwarded over a thousand times for 15 days, so that the source of content that goes viral can be identified if legally required. The bill also bans the use of any tools that enable mass messaging.

WhatsApp capped message forwarding in early 2019: at the time, one of Bolsonaro's sons, who leads the presidential social media efforts, said the family would find alternative options.

Social media platforms should have offices and a legal representative in Brazil, according to the fake news bill, but would not be required to store data in Brazil.

The bill also proposes that social media platforms providing services linked exclusively with mobile numbers suspend the accounts of users whose numbers have been disabled by operators. The proposed law also includes provisions relating to the immediate removal of online content that is harmful to children.

Social media accounts belonging to public servants such as ministers and other roles considered to be of public interest, would not be able to prevent user access to their publications, according to the proposal.

Penalties that can reach up to 10% of the company's profits in Brazil in the current year can be applied if companies fail to identify users responsible for the dissemination of fake news. Those businesses can also have their activities in Brazil suspended if they fail to comply with the measures outlined in the proposed regulations.

The bill also includes the creation of a council that would be responsible for creating a code of conduct for social media companies. This would be a group of 20 members, including representatives of the national telecommunications agency Anatel, which would also be accountable for evaluating the application of policies imposed on social media companies, as well as studies around freedom, responsibility, and transparency online.

Over a period of 11 days, four versions of the fake news bill have been developed in order to arrive at a consensus over the content to be voted. As a result, several items such as those relating to fake news in election campaigns were left out of the bill.

One of the most controversial points removed from the bill was the requirement for users to present details such as ID numbers in order to create social media accounts. The current version requires social media firms to confirm the identity of users in the event of suspicious activity relating to false information, or if they are legally required to do so.

In the latest version, dissemination of fake news online is not considered to be a crime, as previously suggested. The penalty of up to BRL 1 million for candidates leveraging on false content disseminated online about rivals was also removed from the original proposal.

Several senators objected to the proposals, which, if approved, will create the Brazilian Freedom, Responsibility and Internet Transparency Law, despite the several amendments made. Their concern, shared by other organizations and trade bodies, is that the project may violate freedom of expression and privacy, while creating excessive bureaucracy for companies, and cause a negative economic impact. Others said the bill was less important than other projects related to tackling the Covid-19 outbreak.

However, there is an urgency to make progress when it comes to tackling fake news in Brazil, said president of the Senate, Davi Alcolumbre, who noted that freedom of expression needs to be ensured online, but on the other hand, such platforms are "used by some criminals to impact the lives of millions of Brazilians".

The main companies that operate social media platforms - Facebook, Google and Twitter - stated the bill is "a project of mass collection of data from individuals, resulting in worsening digital exclusion and endangering the privacy and security of millions of citizens".

The bill will now be voted by the Congress, where further changes should be made before it reaches president Jair Bolsonaro. Speaking to the media today (1), Bolsonaro said he believes the bill is unlikely to be approved by the Congress and, if it is, there is a possibility he might veto the proposals.

The proposed introduction of regulations to tackle misinformation online comes as investigations progress around the existence of a mechanism inside government which, former presidential allies claim, spreads fake news and defames the opposition across social networks as part of their day job.