The government (PT) is evaluating progress in the regulation of big techs and updating the decree that guides the , which is from 2016, considering the new determinations related to the responsibility of social networks established by the (Supreme Federal Court) in a judgment concluded last year.
Unlike bills, decrees do not need to be approved by the Legislature.
Among the measures studied, according to government members interviewed by Sheetis giving responsibility for monitoring whether platforms are complying with the rules imposed by the court.
Secom (Secretariat for Social Communication of the Presidency) and , which have structures dedicated to the themes of law and digital policies, are at the forefront of the text.
Initially responsible only for supervising legislation on personal data, the ANPD now also has the responsibility of monitoring ECA Digital, a law that came into force in March this year and defined obligations related to children and adolescents for platforms.
In this context, the body began to have a new structure, with more employees, and was transformed into a regulatory agency, with legal provision for decision-making and financial autonomy. The directors that make up the body are appointed by the Presidency for fixed terms and undergo a hearing in the Senate.
“Our reading is that the Supreme Court’s thesis brought a series of obligations with an additive profile to the law and this, therefore, gives rise to several administrative and [também] a new regulation for the Marco Civil”, stated João Brant, Secretary of Digital Policies at Secom. “The decrees under study provide for the ANPD to monitor the administrative obligations provided for by the STF.”
If this scenario materializes, the agency would become a regulatory body for digital networks more broadly.
At the same time, the , also inspired by the STF decision, but which would only deal with what is described as combating misogyny and violence against women in the digital environment.
Last year, the STF judged the constitutionality of part of the Marco Civil da Internet, a law approved in 2014 according to which social networks were only subject to pay compensation for content posted by a third party if, after a court decision ordering its removal, they kept content up.
In the thesis approved, the court – which until then only included non-consensual nudity and copyright infringement. It also created the obligation for proactive moderation by the networks for a list of topics — such as anti-democratic crimes, terrorism, incitement to racism and incitement to suicide — providing for punishment in case of systemic failure. In other cases, the STF understood that networks can only be punished if they do not remove them after notification. As for crimes against honor, the rule has not changed.
There are still appeals pending analysis by the court. On that occasion, the STF also appealed to Congress to legislate on the matter.
The argument used by members of the government to defend the issuance of a decree is that the Supreme Court’s decision, despite already being valid, would be ineffective and operational, both due to a lack of detail on points that would be broad or generic, and also due to .
Such an internal debate has existed since last year, but it would be more mature now. Last week, there was a ministerial meeting on the subject and the expectation is that there will be some progress on this matter next week. There is still no definition, however, whether a decree will actually be published, given that the issue has not yet been decided by the president.
Representatives of social media companies, online shopping platforms (marketplaces), civil society and the Management Committee of Brazil () would be heard by the government.
According to different interlocutors familiar with the discussions, the ANPD would be responsible for monitoring both more structural aspects, such as assessing whether the platforms’ reporting channels are adequate, and whether companies were presenting “systemic failures” in the removal of content that, according to the STF, they would have an obligation to remove proactively.
An aspect still open would be the role of the ANPD in applying punishments in this area. Regardless of the design, however, the understanding is that the agency’s inspection could support legal actions on these topics.
From an individual point of view, a user who felt harmed by a post or by the actions of some big tech would still need to file a lawsuit in the Judiciary regarding their specific case, for example.
Among the points still under discussion within the government are the deadlines to be established for platforms to remove content, according to the different categories established by the Supreme Court. Another undefined point would be the period for the decree rules to come into force.
Another possibility is that the ANPD itself will come to , as is happening within the scope of ECA Digital.
According to one of the people interviewed for the report, the most challenging points in the decision on the topic are the government’s relationship with the platforms, as well as with the United States.
Furthermore, the measure must suffer strong criticism from the opposition, if put into practice. With the exception of ECA Digital, initiatives to approve network regulation in Congress have not progressed in recent years. , for example, was nicknamed the “censorship PL”.
