Brazil: “fake news” proposals add uncertainty to institutional crisis

Brazil joins the list of countries debating regulations to eliminate “fake news.” Dangerous proposals to censor online expression in the name of fighting disinformation come at a terrible moment for Brazil’s democracy.

The issue of “fake news” is well known all over the world. But even its definition is a problematic matter. The term can encompass many different things: satire, parody, fabricated news, manipulated or misappropriated images or videos, advertising materials in the guise of genuine news reports, and even propaganda. Many of these things are perfectly legitimate forms of expression. That is why many organizations, including the United Nations and the Organization of American States (OAS), discourage using the term “fake news” in any regulation that may impose restrictions on free expression. Its ambiguity and vagueness in this context makes it incompatible with international standards for limits to fundamental rights.

Early in March, lawmakers put a draft proposal for legislation to address “fake news” on the agenda of the Social Communication Council, a multistakeholder auxiliary board of Brazil’s Congress. The draft bill’s focus is on “fake news” in the context of elections and it forces internet intermediaries to remove content without a court order. After strong pressure from Brazilian civil society, the Council announced that it would “study the proposal in depth” instead of immediately submitting it to the Congress for debate.  

Nevertheless, other bills with a similar intent were also introduced in the Brazilian Congress, at around the same time. One of them proposes a modification of the Criminal Code to punish “the creation, disclosure, or sharing of false information or news by any means of communication that may alter the truth about individuals, companies and affect the public interest,” with penalties that go up to four years of imprisonment, and fines. The bill also outlaws “using the internet, social networks or other means to facilitate the dissemination of false news.” Another bill criminalizes “the conduct of those who offer, publish, distribute, or disseminate news or information that is known to be false through electronic or printed media,” with up to one year of imprisonment.

Not news in Latin America

The issue of fake news, and the interest the government is showing in regulating it, is not new in Latin America. In Mexico, the “Legislative Challenges for Digital Platforms” forum examined possible legislative approaches to “fake news.” In other places, the approach is more dangerous, with proposals that risk criminalizing lawful speech and that deputize private actors to take down content without judicial analysis or oversight. That is the case of Honduras, were the government used its majority in Congress to vote in favor of a bill that proposes just that. There is just one more voting session to go, in a date to be defined, before that dangerous proposal becomes law. In Nicaragua, government officials recently declared their intention to regulate social media in order to limit “online hate” and “misinformation.”

This debate about “fake news” is taking seed throughout the region, and civil society is deeply concerned because of the threat of censorship that these proposed measures represent. This is specially worrying in Nicaragua and Brazil, where politically motivated violence is causing massive unrest along with disproportionate reactions from the government.

Rafael Zanatta, a researcher at the Brazilian consumer advocacy group IDEC said: “We need a serious debate in Brazil and the region about the ethical use of technologies during elections and the connection between the disinformation industry and illegal data collection and data sharing. This must be a multistakeholder debate with shared responsibilities. The criminal approach by itself will fail and threaten civil liberties.”

Disproportionate and dangerous measures

A common problem in bills which seek to combat “fake news” is that they force internet intermediaries, like Google, Facebook, and Twitter, to remove or block content expeditiously third parties flag them (often, those flagging are users, law enforcement, or ad hoc government entities). In some cases, failure to comply with such notifications can mean civil liability and hefty fines for internet intermediaries (such as 5% of their last-year’s turnover).

This kind of privatization of enforcement of the law is likely to bring bad results for companies, users, and democracy. It is extremely complicated for internet intermediaries to properly analyze news and determine what is or is not true, or to divine the intentions of the people spreading the information. Should a private company be put in the position to determine the rules and exceptions for freedom of expression? What would the implications be for the protection of journalistic sources? These and other important questions make this formula hazardous.

Additionally, the threat of fines and the demand for a rapid response create an incentive for the removal of content — whether or not the content is legal — for the sake of prevention. This can create a “chilling effect” in the creation and access to information. If a particular piece of information online is suspected to be in violation of the law, a judge should be the valid authority to decide whether that information is to be taken down.

If government entities or private companies determine what gets taken down by themselves, and without proper oversight, users risk losing a very important tool for communication and organization. There are countries in which human rights activists and journalists have been silenced by authoritarian governments using “fake news” as an excuse to have their accounts suspended and their content taken down. Latin American users could face similar consequences, particularly in a context where there are is opportunity for people to express themselves and access information via traditional media, due to the concentration in the ownership of media outlets.

It is also important to think about the proportionality of proposed solutions in light of the problem under analysis. Decision-makers often argue for extreme measures. Luiz Fux, the President of the Superior Electoral Tribunal, said that if “fake news” influences election results, an election could end up being overturned. Some research has found that the impact of “fake news” is relative, and others have concluded that “fake news” has had little overall effect in elections.

Evidence like this should make us question the potential benefits (if any) of regulating “fake news” given the likely negative effect such regulation would have for the free flow of information. Decision-makers should not so quickly abandon the concept that online communities can edit their own content and that readers have the ability to critically think and examine news sources and opinions when they are presented to us.

Participatory solutions for an open internet

Criminalization or restriction of free speech should never be deemed a viable solution for this problem. This was well established in the joint declaration on freedom of expression and “fake news,” disinformation, and propaganda by the special rapporteurs of several United Nations human rights bodies.

The complexity of this subject requires extensive discussion and well thought-out alternatives. An interesting (but also contested) idea for tackling “fake news” is supporting fact checking initiatives. Mexico came up with the idea of #Verificado2018: a group of 60 social organizations, universities, and journalists that will check images, videos, information and political speeches, and messages shared in social media. Many organizations in Brazil, under the slogan #NãoValeTudo, expressed their support for initiatives to verify facts, data, and information that reinforce ethical and transparent journalism, whatever their political positions. Other countries that are using this strategy include the U.S., France, and Germany.

Additionally, governments and the private sector should adopt measures that foster independent and professional journalism. There is concern in the region – particularly in Brazil – about the concentration of traditional media outlets and their dependence on political, economic, and religious power.  This leaves citizens without alternatives to access information and therefore affects their capacity to organize politically and express opinions on public matters effectively. The controversy surrounding the press coverage of the murder of Marielle Franco, a city counselor in Rio de Janeiro who opposed the militarization of the city, is an example of the need for informed and participatory debate about press freedom in Brazil.

We believe any good solution to the “fake news” problem should contemplate the participation of civil society, journalists, academics, and the tech sector in a transparent and open dialogue. We call on governments to stop initiatives that may limit freedom of expression online and to enable a public and democratic discussion on this important issue.