On 6 September 2021, Brazil’s president Jair Bolsonaro enacted a provisional measure (an executive order with immediate legal force and a deadline of 120 days for Congress ratification) which replaced several norms of the so called “Brazilian Internet Bill of Rights” (Law no. 12.965/2014). The aim of the measure, which was enacted one day before the Brazilian Independence Day and an accompanying political rally, is to forbid social media companies to exercise content moderation over disinformation and other violations of their terms of service. Countless social media users used the upcoming Independency Day to attack the Brazilian Federal Supreme Court (hereinafter, STF) and its Justices, and even to request a coup d’état. Answering these attacks both the STF and the platforms increased their efforts to moderate social media contents.
This move against „censorship“ by social media fits into the overall strategy of Bolsonaro. Indeed, the aggressive use of social media belongs to the most important toolboxes of Brazil’s president. Without the social media performance of his electoral staff (especially on WhatsApp), Bolsonaro probably would have lost the 2018 elections in Brazil. A key feature of this performance was a large disinformation, defamation, and hate speech campaign that was launched against his main opponent, Fernando Haddad, from the Workers Party. This strategy remained almost unaltered after his administration started. Bolsonaro and his allies daily use social media to communicate with their supporters and spread massive campaigns of attacks against republican institutions.
Bypassing the legislative, Bolsonaro avoided the political debate concerning social media regulation to continue his deeply problematic use of these tools. Nevertheless, the provisional measure is unconstitutional for formal and material reasons.
Brazilian Regulation for Social Media Content Moderation: The Road so far
The regulation of social media in Brazil has been a topic of broad political discussions for most of the time. Unlike other laws in the country, the Brazilian Internet Bill of Rights is the outcome of a wide and democratic participative process. Members of the civil society, the government, and various companies and academics could contribute to the legislative process through a series of public consultations. The regulation of Law no. 12.965/2014, published by executive decree, was also marked by this democratic approach.
The existing tool for containing the spread of disinformation is the so-called social media content moderation system, regulated by Article 19 of the Law no. 12.965/2014. Platforms can exercise autonomous content moderation over posts made by any user in their digital environments. The companies also have the power to suspend or block users responsible for posting contents against their terms of service. Likewise, the judiciary can oblige platforms to delete unlawful content or users who act illegally. Yet, this is a task hard to perform because the numbers of users disseminating political disinformation, hate speech, and defamation in Brazil is extraordinary high, especially, but not exclusively, among Jair Bolsonaro’s allies.
The Bolsonaro Government Assault on Platform Autonomy
So far, Bolsonaro has been using social media without any restrictions to spread disinformation against randomly chosen enemies (be it left-wing political parties, the STF, the National Congress, journalists, scientists, etc.). In this regard, Bolsonaro benefits from a network of politicians, bloggers, businesspeople, and journalists who continuously provide content blaming various institutions for Brazil’s social problems (even though Bolsonaro is the main political authority). In an attempt to constrain this cluster of disinformation, defamation, and hate speech, the STF launched three successive preliminary criminal investigations related to fake news, undemocratic actions and digital criminal organizations („milícias digitais“). In the days before the rally of 7 September 2021 numerous of Bolsonaro’s political allies were arrested and had their social media accounts blocked for promoting illegal content.
Unsatisfied with those efforts by STF and platforms against his supporters, Bolsonaro converted the regulation released last May as a draft decree into Provisional Measure 1.068/2021. The measure adds some new articles to the Law no. 12.965/2014 aiming to prevent the platforms to moderate content. In particular, the government changed the authorization for platforms to moderate content in accordance with their terms of service and fixed a number of restricted circumstances under which content moderation is still allowed (for example, when the content violates child protection legislation, contains explicit nudity, promotes criminal or terrorism activities, etc.). Crucially, however, the dissemination of disinformation is not part of this list of justifications for content moderation. If, for example, a company would like to restrain disinformation campaigns against sanitary protocols during the Covid-19 pandemic or against vaccination, the company will be subject to fines imposed by some executive body (the provisional measure does not even specify which organ this would be).
Immediately after these reforms came to light, some Brazilian experts raised doubts regarding the reform’s constitutionality (here, here and here). There are already constitutional review cases filed before the STF. Likewise, the opposition parties are pressing the National Congress President to reject and turn back the provisional measure, as happened in 2020 with a similar act which damaged the institutional autonomy of public universities.
Why the Brazilian Internet Bill of Rights’ Reforms are Unconstitutional
The first doubt regarding the constitutionality of the measure is related to formal constitutional requirements for the enactment of provisional measures. According to Article 62 of the 1988 Federal Brazilian Constitution they can only be adopted by the executive in cases of relevance and urgency concerning the matter to be regulated. In the present case, the Law no. 12.965/2014 was adopted seven years ago and so far has been applied without major hitches. Of course, in Brazil, as elsewhere, there are problems that need to be addressed related to the platforms’ transparency over their social media content moderation systems. However, there are several legislative projects underway aiming to address the topic. Therefore, there are good reasons to assume that the constitutional requirement of “urgency” is not fulfilled and that Bolsonaro’s bypassing of the legislative is unconstitutional.
The second point concerns material requirements of the constitution. Articles 1st, IV, and 170 of the 1988 Brazilian Constitution establish that economic activities performed in the country are based on freedom of initiative. When companies operate within the Brazilian constitutional framework, they are free to develop their business models. The Government thus may only interfere with those activities to hinder potentially illicit actions and the Constitution itself imposes limits to this regulation. Opposing disinformation is an integral aspect of the platforms‘ business models since platforms must take into account not only freedom of speech but also have to avoid damages both to the constitutionally protected honor and reputation of people on the one side and the integrity of institutions on the other. In other words: despite being a private entity, platforms must develop their business model in light of certain constitutional guarantees. Limiting the platform’s ability to moderate social media content thus disregards this dimension. Though it goes without saying that the legislature may regulate the specific forms of content moderation, the total ban of moderating disinformation breaches the regulative limits imposed by the 1988 Constitution.
At the time of writing, the opposition parties are taking legal actions against the enforcement of the provisional measure. In the short period, both the STF and the National Congress have ways to suspend (judiciary) or reject (legislative) the modifications promoted by the Bolsonaro government in the Brazilian Internet Bill of Rights. But the current battle over the provisional measure also exemplifies the rising pressure on Bolsonaro. Recent public opinion polls performed in Brazil demonstrated the high level of disapproval regarding the current administration. Since Bolsonaro’s political strategy builds on the spread of disinformation in social media, one should keep in mind that his digital populism methods are dependent on cutting the social media platforms‘ efforts to moderate fake news. To achieve this goal, he probably will do whatever it takes.
Levy Silvério dos Reis, Ulisses; Martins, Raíssa Paula: Legalizing Disinformation: Bolsonaro's Attack on Social Media Platforms , VerfBlog, 2021/9/14, https://verfassungsblog.de/legalizing-disinformation/, DOI: 10.17176/20210914-173323-0.