Digital Environment Regulation: A task for our generation

Federal Deputy Orlando Silva (PCdoB), rapporteur for Bill 2630, which deals with accountability, freedom and transparency in digital environments (the so-called Fake News Bill), was the special guest for the Preparatory Meeting of the Media and Democracy Council this Wednesday (2

Federal Deputy Orlando Silva (PCdoB), rapporteur for Bill 2630, which deals with accountability, freedom and transparency in digital environments (the so-called Fake News Bill), was the special guest for the Preparatory Meeting of the Media and Democracy Council this Wednesday (24). In its first cycle of debates, the council is focusing on the integrity of digital rights and on the quality of the online environment in Brazil.

Orlando Silva sees the approval of the bill for the regulation of digital platforms in the country as a task for a generation. “We are a generation living in a moment when the difference between virtual and real is ever smaller, and we have a duty to democracy, to civilization; that is how I see the task of producing these norms. We are fulfilling the task of a generation”, he said. The representative believes the bill will be voted next week. He mentioned a game called “Slavery Simulator”, in which users can play the role of a slave owner in order to “make profit and prevent rebellions and escapes”, as a major example of the urgency of regulating this environment. The game was removed by Google from its app store this Thursday afternoon after negative repercussion. According to Silva, the episode reveals a complacent attitude by digital platforms regarding illegal content.

He was also the rapporteur for the General Data Protection Law in 2020, and has been conducting the discussions on Bill 2630 for almost three years. In his opinion, the advances brought by the bill include an accountability regime for digital platforms, transparency rules, and the defense of freedom of speech.

 

Accountability and transparence

“The revision of the accountability regime we propose for digital platforms means holding big techs accountable when they are neglectful, even after being notified regarding illegal content”, he clarified. In other words, when there is a release of illegal content, these companies must be notified, informed or communicated, and then they need to take steps quickly and transparently. “The companies will be held accountable for any damage caused by such content”, he stated. Another aspect is related to social media boosting. “You cannot profit or receive payments for carrying a message forward. If that message is harmful, you cannot argue that you were only the vehicle for it. Are you a partner? Then you must be held accountable for the damage caused”, he argued. For the rapporteur, these are central aspects of the revision of the accountability.

According to Orlando Silva, Brazil is moderate regarding this issue compared to other countries. “I warn you that, here, we are a lot more moderate than other countries. In Germany, the duty of care corresponds to the entire criminal code. “Here, we are talking about redoubling attention regarding crimes against children and adolescents, inducing suicide, self-mutilation, crimes against women, racism, attacks on the democratic rule of law, terrorism, health violations. It is a lot more modest”, he claimed.

Regarding the rules on transparency and freedom of speech, Silva argues that society must have to right to know how these institutions operate. “When we talk about a recommendation algorithm, for example, we want to know the criteria for using it, because they are establishing what gets heard in the public debate on the networks. As you know, not everything that is said is heard on social media. In fact, I have been saying that freedom of speech is not only the right to speak, but also the right to be heard, and whether you can establish your own platform and those who will or will not hear you”, he defends. The rapporteur believes the current system imposes restrictions on the circulation and pluralism of ideas. “There is no democracy without debate. In addition, there is no debate without diversity, without pluralism. Therefore, when we talk about transparency, we are not interested in learning the business secrets of these companies, but in ensuring society can be scrutinized by specialists and the collective intelligence to evaluate this information, helping in the legislative process, in the accountability of these companies, and in the elaboration of thought. So, I would say that transparency obligations are essential, and now my life is not easy because my view is that we should demand in Brazil what is demanded in Europe regarding digital services”, said the deputy.

Still regarding freedom of speech, Orlando Silva insists that full freedom implies the possibility of speaking and being heard, enabling users themselves to contest the moderation of content. “This will not be controlled by parties, by the State, by the government, by any leaders or churches, whoever it is. We want to bring this to the citizen level so that each citizen may defend their own freedom of speech”, he said.

According to the deputy, that is a very sensitive point because many of the bill’s detractors argue that it is a form of censorship, when in truth – in Silva’s opinion – it is a law seeking to establish mechanisms so that each citizen may defend their freedom of speech.

“I would say that is the general idea of the proposal. The defense of freedom of speech, the creation of transparency obligations for digital platforms, and the change of their accountability regime. Evidently, there is a whole set of issues involving this topic”, he summarized.

Other concerns raised by Orlando Silva include the fact that there is an increasing intention by congressional representatives to protect children and teenagers, which are the most vulnerable to the collateral effects of hate speech. There is also an important debate about accounts of public interest, including the debate about extending parliamentary immunity to social networks, due to the implications they may have on misinformation. “But there is also a democratic issue. It is important to remember that parliamentary immunity is not an invention of Brazil; it is a safeguard for the minority in legislature against the current government. There are many distortions in the public debate today. Many manipulations of conduct and wrong behavior by many people, which sometimes clouds the vision regarding certain institutions that have a profound democratic character”, he evaluates.

 

Conundrum
 

According to the rapporteur, there is an important conundrum regarding the debate on this issue in terms of who will perform the regulation, and how to do it. He believes the best mechanism would be to create an autarchy for specialized technical supervision with a mandate, so that it could tackle the regulatory challenges in this sensitive sector.

“That is not a simple thing here at the Chamber due to its political composition, as you know. What is the weight of the government? There is resistance to the government, and anything seen as a creation of the government generates a fierce dispute. They even started calling it the Ministry of Truth in order to put this initiative on the defensive. There is a strong articulation for the national telecommunications agency, Anatel, to take this responsibility”, he informed.

 

The Debate in the Council

Orlando Silva said a determining factor to advance the discussion on the bill would be to open up the debate for the Brazilian society and get out of the political war, considering this topic does not belong to the government or the opposition. “But the social and political fracture we see in the Brazilian society makes it so that the entire political dynamics is based on narratives that interdict the debate. My perception is that a meeting like this is very important to enable a plural evaluation, elaborating criticism and pointing out the virtues and limitations of the bill, so that we can make it in the best way possible. However, my intention while participating here is not only to welcome your knowledge, but also to invite you to participate in the public debate. Participating in the debate matters”, he argued.

The researcher Nina Santos of Desinformante and the Sala de Articulação contra a Desinformação (SAD) said regulation is essential in order to move away from exceptionality. Nina mentioned a proposal document produced at SAD and signed by more than 100 organizations, listing the points she considers essential: creation of a regulatory body, requesting the deputy to expand on his position regarding the proposal articulated with the OAB (the Brazilian bar association); accountability for paid promotions and boosting; and gender and racism issues.

Amaro Grassi, coordinator of the FGV/EU project, explained the project’s articulation and work fronts, and asked a question about European Union deputy Anna Cavazzini, leader of the committee implementing the European internet law, regarding her perplexity concerning the opposition made in Brazil by the platforms.

The researcher Ligia Fabris Campos, who is also a member of the project and works with transversal topics on law and gender, asked a question regarding the concept of freedom of speech as an unlimited or absolute right.

To answer Nina Santos’ question on racism and gender, Orlando Silva said there are keywords in the text causing intense disagreement at the Chamber of Deputies. One of them is gender. The term was replaced with violence against women to avoid controversy. Another term is racism. The inclusion of racism in the list of crimes requiring additional care was very controversial, but was maintained. “My answer was, look at me, you are going to suppress the rapporteur on the subject if you remove racism. As a rapporteur, I cannot remove the crime of racism from the severity is has”, he said. Regarding the paid promotions and social media boosting mentioned by Nina, Silva said there is an ongoing debate to replace subsidiary liability with joint liability, which could be applicable. “Because if you identify the announcer, you do not run the risk of leaving the procedure open for identification of authorship for something that caused harm”.

Regarding the monitoring body, Orlando Silva supports the idea proposed by the digital law commission of the OAB’s federal council (which he hopes will be formally adopted). “I see the proposal as the possible political solution, it could be the solution for a very difficult dispute, because we do not have a majority to approve the creation of a new entity”, he explained. However, he said Anatel is still on the table. “Anatel is a possibility. The argument is that the funds are already there, as well as the technical staff, since it already regulates similar issues. The criticism is its lack of expertise, its problems managing existing issues, and the fact that it is captured by the market”, considered Silva. He added that there can be no regulation without a regulator, as that would be ineffective.

In his response to Amaro Grassi about the comparison between the reaction of platforms in Brazil and in Europe, Orlando Silva said he had a long conversation with the EU deputy, and she was perplexed by the actions of big techs.  “They crossed all limits and violated their own terms of use. The difference between a medicine and poison is the dosage. Their dosage went too far, which convinced many leaders that we must act. You see, the president of the Chamber of Deputies, who is a not a left-wing leader, pressed charges against these companies. That was very extreme”, said Silva.

Lastly, in his response about freedom of speech, Orlando Silva said again that it is an essential discussion. “As the professor said, freedom of speech is not absolute. Even the greater good that is life is not absolute. That is strange to say, is it not? However, the exclusions of legality in the Brazilian criminal code are in strict compliance, legal duty, self-defense. They are exclusions that do not even give absolute protection to life, let alone freedom of speech”, he argued.

In closure, Orlando Silva reiterated on the need to participate and adequately inform the public debate. “I conclude by saying that, if I could ask anything of you, I would ask you to intervene and participate in the public debate, because that is the challenge. I am one of those people who believe that this is a very important battle taking place. I do not know what the outcome will be, but we are moving forward. If we are able to inform Brazilian society, we will advance”, he concluded

 

What the Media and Democracy Council is

The Media and Democracy Council began its activities this year, in April, as a public space for activists, researchers and organizations of civil society to promote dialogue and to conceive guidelines to ensure the integrity of digital environments and the strengthening of Democracy. 

The council is part of the Media and Democracy project, an initiative of the European Union Delegation and the School of Communication, Media and Information at FGV, and has two more work fronts, namely social media monitoring and analysis and information checking, in a collaboration between FGV, Agência Lupa and the German center for analysis of the public debate Democracy Reporting International (DRI).

The Instituto Novos Paradigmas (INP) is responsible for the formulation, articulation and operation of the council, under the coordination of journalist Sandra Bitencourt, PhD in Communication and Information, and sociologist Jorge Branco, PhD student in Political Science. The council’s composition is focused on organizations and entities of civil society that use media actions – particularly in the digital environment – to fight political violence against women, black people, indigenous people, quilombolas and LGBTQIA+, and to fight disinformation affecting the Amazon and the climate initiative.