The Big Tech Regulation Bill (Social Media Platforms)

The Brazilian Internet Bill of Rights (Marco Civil da Internet – MCI), Law 12.965/2014, introduced a series of legal provisions on matters that, until it came into force, lacked clarity and were exclusively related to so-called internet applications, including users’ rights and the principles governing internet use in Brazil.

It is not merely a programmatic or didactic law that defines concepts; it is also a regulatory framework. The MCI sought to regulate important aspects of the online environment. The two main issues it addressed concern internet applications: content removal and the liability of internet platforms for third-party content.

As a general rule regarding content removal, the MCI adopted the judicial order system. This means that, in order to remove content from an internet application, there must be a specific court order. Platforms cannot summarily or automatically remove content on their own initiative. This approach contrasts with the “notice and takedown” model, under which, after notification by an offended party, the platform must remove the challenged content. Under the MCI, this notice-and-takedown system applies only in one case: revenge pornography or the disclosure of nude or sexual content without the consent of the person involved.

The second regulatory aspect concerns the liability of internet applications for third-party content. As a general rule, platforms are not held liable for content generated by users, except if, after receiving a court order to remove the content, they fail to do so within a reasonable time and within the limits of their technical capabilities. Platforms may also be held liable if, after receiving an extrajudicial notification regarding non-consensual nude or sexual content, they fail to remove it within a reasonable time and technical capacity.

The bill proposed by the Minister of Justice, Flávio Dino — often referred to as the “social media regulation bill” — has generated controversy because it directly addresses these two provisions of the MCI. With the stated goal of combating “crimes against democracy,” the bill proposes amendments to these rules.

What does this represent? It represents the possibility of ordering the removal of online content without a prior court order, provided the content is related to alleged crimes against democracy, such as inciting acts against the Democratic Rule of Law, promoting terrorism, or encouraging hostility among the constitutional branches of government, among others. In such cases, immediate removal of the content would be possible, even without a specific judicial decision.

Failure to comply with the removal order could result in holding the platform liable for third-party content — a departure from the original MCI framework. Broadly speaking, the so-called “Democracy Package,” as it relates to internet applications, expands the State’s power to regulate the internet and its platforms.

This measure is viewed with caution, as it may lead to regulatory abuses. There is no objective criterion to clearly define what constitutes coup-related, terrorist, or similar content in practice. If not carefully implemented, it could represent a direct limitation on the fundamental right to freedom of expression.

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André Faustino - DPO IBREI