How Bolsonaro’s Provisional Measure promotes disinformation on the internet

Issued the day before the anti-democratic demonstrations of September 7, the measure limits the ability of social media to moderate fake news and hate speech

No Senado, líderes partidários pediram para o presidente da Casa, Rodrigo Pacheco, que devolva a MP das Fake News, o que faria com que o texto perdesse eficácia. Foto: Marcelo Camargo/Agência Brasil   

Last Monday, September 6, the day before the anti-democratic demonstrations staged by supporters of the government of Jair Bolsonaro, the Presidency issued a Provisional Measure (No. 1068/21) that restricts the ability of social media to moderate content and remove profiles that violate their terms of service.

Alleging that the measure guarantees freedom of expression, the government is attempting to change the Civil Rights Framework for the Internet and the Copyright Law and, according to experts, making it more difficult to combat disinformation and hate speech.

In response, the political parties PSB, PDT, Partido Novo, PT, Solidariedade and Cidadania filed a case in the Supreme Court calling for the immediate suspension of the measure. In the Senate, party leaders asked the president of the House, Rodrigo Pacheco, to return the Provisional Measure to the government, which would also cause the bill to expire and lose its effectiveness.  

According to the Rights on the Net Coalition, a group consisting of 50 civil society and academic organizations that work in defense of digital rights, the president has expressed concerns regarding intervention from online platforms against content posted by his supporters.

“Jair Bolsonaro frequently violates the content policies of these application providers and this has been met with complacency on the part of the companies, which remain remiss and have adopted almost no moderation measures with regard to his content. In spite of this, he decided to intervene unilaterally in the workings of social media, attacking the principles of the Civil Rights Framework for the Internet,” said the Coalition in a statement.

See below four points of Provisional Measure 1068/21 criticized by the experts:

It undermines the combat of disinformation and hate speech

The Provisional Measure bans, under penalty of fines, social media like Facebook, Twitter and YouTube from removing content and profiles that violate their terms of service, except for “just cause”, i.e. content related to pornography, pedophilia, encouragement of terrorism or drug trafficking, among others. The measure does not provide, for example, for the removal of fake news, hate speech, incitement of violence or online harassment. This, for example, was the reason former President Donald Trump was banned from Facebook and Twitter in January this year, for inciting the invasion of the Capitol. Furthermore, during the pandemic, the moderation of social media has contributed to reducing the spread of false information that is potentially harmful to public health. It is also feared, as a result of this measure, that the disinformation war will affect the election debate in 2022.

Using a Provisional Measure to change the Civil Rights Framework for the Internet

Approved in 2014 after extensive consultation with and participation by civil society, the Civil Rights Framework for the Internet was created with the aim of preserving freedom of expression and holding internet providers liable for harm resulting from content generated by their users. This means that platforms have the freedom to moderate content according to their internal policies and according to the interests of the community. By removing the moderating function of social media, these companies lose their ability to promote a safe environment for exchanging information. Additionally, the measure tramples on democratic debate by modifying the text approved by Congress with the ‘stroke of a pen’ and without consulting competent bodies such as the Internet Steering Committee.

It infringes on the principle of free enterprise in the private sector

By interfering with the moderation capacity of social media, the measure limits management and interferes in the business model of these companies, which depend on a healthy environment for exchanging information to attract advertisers. This environment can only be created using guidelines that govern the behavior of users and a moderation that can ensure compliance with these rules.

It does not meet the requirements of a Provisional Measure

The Constitution states that a Provisional Measure, which has the force of law from the moment it is published, is the prerogative of the President of the Republic but can only be created in the case of importance and urgency, and it must be immediately submitted to Congress for approval. There is, at this time, no urgency that justifies such an interference in the workings of social media platforms. On the other hand, its publication on the eve of the big protests on September 7 indicates a concern that anti-democratic content might be removed. This constitutes a misuse of these measures and an abuse of the regulatory power of the President of the Republic for personal political purposes.