Fake news is far from new. That said, digital tools such as social media and online bots have changed the speed at which disinformation travels and amplified the extent to which it manipulates public opinion. The issue is a severe challenge to democracies in Latin America, where election campaigns are being waged as information wars. The potential of fake news to threaten democracy has led policymakers across the region to seek different ways of tackling disinformation.
In Brazil, media outlet Folha de S. Paulo has reported that the new Minister of Justice, Flavio Dino, is drafting a bill that establishes a liability regime for online intermediaries. After thousands of supporters of former president Bolsonaro invaded the country’s congress, presidential palace, and supreme court, the bill would make it a criminal offence to spread “terrorist” news that “threatens the rule of law”. Reportedly, the proposed regulation places an obligation on social media platforms to “immediately” remove content that “encourages anti-democratic riots and overthrow of lawful governments” or relates to the trade of firearms and ammunition.
The bill is expected to be presented over the next few days to Luiz Inácio Lula da Silva (Lula), who has made it clear that regulating social media platforms will be a priority for the government. The statement aligns with a report issued by the Communication Working Group of the Government’s Transition Team, which recommended holding a public consultation within the first 100 days of government to work towards regulating social media and establishing the country as a trendsetter on the issue.
The challenges at stake: Why is it so hard to regulate online disinformation?
The initial challenge arises from the complexity of the phenomenon and the difficulties in formulating a univocal legal concept of “fake news”, which comprises content that is illegal (such as expressions of racism), harmful, and/or purposely misleading (disinformation). Although they may sometimes coincide, these concepts all require tailored policy and legal responses.
The second challenge concerns content that is false but not necessarily illegal, given that freedom of expression should include the right to express incorrect views. The challenge, therefore, is not only to distinguish what is fake from what is “true” but to balance the right to freedom of speech and the need to control the impact of disinformation on our societies. As the line regarding false content is blurred and the harm is – albeit massive – highly diffused, freedom of expression becomes especially vulnerable to any ill-advised restrictive or banning decision.
Another challenge relates to the technical complication of deleting content. Although significant efforts have been made towards implementing artificial intelligence tools that detect specific types of content, the nuance of language often prevents algorithms from correctly grasping the underlying context of messages and understanding the subtilities or hidden meanings of the information shared. Where AI coding fails, human content moderators are called upon to determine the removal of specific messages. Unsurprisingly, this is no easy task and comes with other political concerns and societal risks.
While there is some consensus over the need to prevent fake news from harming our democracies and sowing doubt about the legitimacy of the electoral process and voting systems, identifying the most effective responses and regulatory interventions to combat disinformation remains a pressing issue.
How has Brazil been trying to tackle disinformation?
In Brazil, a bill named “Law on Freedom, Responsibility and Transparency on the Internet” was tabled in 2020. Known as the “fake news” bill, the proposed legislation included measures that not only aimed at reducing the dissemination of disinformation but also provided new rules for the operation of search services, social networks, and messaging applications. The bill also restricted how digital platforms could share user data with their commercial partners and required tech companies to publish reports for each instance of content demonetisation and removal.
The legislation sparked fierce criticism from civil society and tech companies, many of whom signed a joint letter criticising the bill. The resistance was shared by local fact-checking organisations and former far-right Brazilian President Jair Bolsonaro, who faces numerous accusations of using disinformation as a political weapon. Despite efforts to fast-track it, the bill was not approved before October’s election and has been stalled in Congress for many months. As it stands, another 59 initiatives sit in Congress and the issue remains far from resolved.
Brazil’s New Institutional Framework: More Coordination Required
Despite announcing that regulation of digital platforms would be a priority for the current government, it is still not clear who will be in charge of creating or enforcing the rules. In fact, the number and role of institutions dealing with the regulation of digital-related issues have changed considerably after President Lula took office on 1 January.
The newly created Department for Digital Policies – placed under the presidency’s press office (headed by Workers’ Party Congressman Paulo Pimenta) – was tasked with “formulating and implementing public policies to promote freedom of expression, access to information, and combating disinformation and hate speech on the internet”. For its part, the goal of the Digital Rights Coordination Office, which was created within the Ministry of Justice, is to “work with digital rights in general, evaluating the laws that already exist and if they are being properly enforced, as well as analysing the need to adapt or create new laws to protect not only citizens’ rights but also to combat illegal speech on the internet against the democratic rule of law”.1 The Secretariat of Telecommunications, placed under the Ministry of Communications (chaired by right-wing minister Juscelino Filho) is also responsible for “proposing policies and objectives related to the telecom industry and value chain”.
To avoid duplication and promote synergies, a strong institutional framework that clarifies the roles and functions of the different entities will be required. Regulating digital technologies calls not only for multistakeholder participation and increased dialogue with interested parties but also coherence among government bodies.
While most of the bills proposed so far stem from a legitimate desire to counter the harmful effects of fake news, rushing legislative proposals to regulate such an intricate issue might not effectively address all the challenges at stake.
What Brazil (and other countries in the region) need is an open, multi-stakeholder dialogue that brings together the media, private sector, civil society, academia, and individuals to define goals, concepts, and key underlying principles. Effective regulation cannot exist before a broad consultation to define key aspects such as what the problem is, who should be in charge of creating and enforcing rules, what entities should be regulated, and what type of content should fall within the scope of such regulation. Moreover, although necessary, legal solutions alone may not fix the root cause of the extensive disinformation problem and its many implications. There is a need for public interest-driven initiatives to formulate consistent, coherent responses to the varied challenges at hand. This may include further action policy, such as investment in media literacy training, fact-checking services, and broader collaboration agreements with the private sector.
With so many different interests, rights, and principles at stake, as well as inherently complex challenges when distinguishing intentionally deceptive news from freedom of speech, there is a complex problem at hand – for which a complex solution is required. A broad and multi-disciplinary response is more likely to strike the right balance between different democratic values and develop policies grounded in human rights and open societies. To get this right, interested parties must start acting now, and more importantly, together.
Access Partnership closely monitors tech, regulation, and policy developments in Brazil. For more information, please contact Paula Rabacov at [email protected].