Experts: decree on big techs opens loophole for censorship on networks

The debate on freedom of expression and control of social networks has once again gained prominence with the repercussion of a decree published by the government that changed the rules for holding digital platforms accountable.

The measure was issued without going through the National Congress and put big techs on alert, especially as it is in force during the next general elections.

For Palácio do Planalto, the measures aim to combat digital crimes. However, experts in digital law warn that the text contains vague concepts that open gaps for censorship.

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What changes with the decree
Among the most controversial points is the creation of the so-called duty of care, which now requires platforms to adopt stricter mechanisms to prevent the circulation of content linked to serious crimes, such as terrorism and sexual exploitation of children.

The text also provides for preventive action by Big Techs, the rapid removal of content - in some cases within two hours - and the risk of companies being held liable.

The decree also introduces the concept of systemic failure.

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Big techs can be punished if the regulator understands that there was an omission in moderation, delay in removing irregular posts or lack of control over what circulates on the networks.

Possible consequences include fines and other administrative sanctions.

Criticism and risks of self-censorship
For critics, the most sensitive point of the decree is the breadth of the new rules and the margin of interpretation left to the regulator.

The fear is that, to avoid punishment, Big Techs will start removing excessive content, as a precaution - a kind of self-censorship.

"Every rule that deals with the responsibility of internet applications that host users' content is a rule that needs to be very well debated in the light of freedom of expression", said jurist Luiz Fernando Prado.

Prado also highlighted that the fact that the rule was created via the Executive raises questions about the legality of the process.

"To date, there has not been a democratic majority to pass such a sensitive amendment law in the civil framework of the internet", he said.

According to the jurist, the Marco Civil da Internet was for a long time a model legislation in Brazil, precisely because of the participatory process with which it was constructed.

"An Executive decree does not allow for all this democratic participation", he added.

Government rejects accusation of censorship
Government rejects the term censorship.

João Brant, Secretary of Digital Policies, stated that the ANPD - National Data Protection Agency - will not be able to order the removal of any specific content, but only monitor the general behavior of Big Techs.

"At no time will the ANPD be able to notify you about any content individually", he declared.

According to the government, the decree also does not create new punishments, since the sanctions are already provided for in the internet's civil framework.

Opposition and digital sector mobilize
The opposition was not convinced.

Deputies have already filed more than 20 projects to overturn the decree in Congress.

The platforms, for now, have not closed their position, but they do not rule out taking the issue to court.

In an open letter, the Latin American Internet Association, the Brazilian Chamber of the Digital Economy and the Brazilian Digital Council expressed concern about the issuance of the decrees.

According to the document, the changes did not go through the usual process of consideration in Congress before being decreed by the Executive.

The entities appeal to the National Congress "to draft legislation capable of remedying the deficiencies of the current regime regarding the protection of fundamental rights."

There is also an additional concern: monitoring the new rules will be the responsibility of the ANPD, an agency linked to the Ministry of Justice.

For experts, placing a body within the Executive structure to monitor the moderation of network content is, in itself, a risk - especially with the rules being in effect during the October elections.

Electoral lawyer Alberto Rollo commented, however, that any decision that unbalances the electoral dispute can be challenged in the Electoral Court or by the Public Ministry.

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Source: CNN