The Lula government’s decree with new rules on social networks assigns to , the role of monitoring the platforms’ duties, considering what was decided by the STF (Supreme Federal Court) in a judgment last year.
With this, the ANPD, which today already supervises platforms within the scope of legislation on data protection and the protection of children and adolescents in the digital environment, gains new powers.
In cases of non-compliance that are of an administrative (non-judicial) nature, the agency may apply punishments provided for in the Marco Civil da Internet — among them, a fine of up to 10% of the group’s revenue, suspension and ban on activity.
Furthermore, according to the government, the ANPD will also be able to edit, following the example of what has been happening within the scope of ECA Digital. These points include the form of notifications that must be sent to the platforms and the deadlines for analysis and response.
Signed this Wednesday (20) by the president, in a ceremony at Palácio do Planalto, the text itself should be published in the Official Gazette this Thursday (21).
Among other items, the STF defined that companies have an obligation to proactively moderate content on their networks for a list of topics, such as anti-democratic crimes, terrorism, incitement to racism and incitement to suicide, and may be punished in this case, if there is a “systemic failure”.
With the government decree, one of the intentions is for the ANPD to supervise, for example, whether companies are taking effective measures to combat content listed by the Supreme Court as those for which they have a duty to remove, regardless of a court order.
Although the government issued the decree after the publication of the trial ruling (which contains the STF’s formal decision), there are still appeals pending analysis by the court.
This Wednesday, the same day the president signed the decrees, the Supreme Court scheduled the judgment of the embargoes, which should be analyzed in the court’s virtual plenary session starting on the 29th.
The deadline for the decree rules to come into effect must be 60 days.
Experts consulted by Sheetassess that the ANPD must face practical difficulties in dealing with all the tasks it accumulates.
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.
“The fact that the government concentrates activities related to this decree in the ANPD makes it the main regulator of digital issues in Brazil”, says Carlos Affonso Souza, professor at Uerj (State University of Rio de Janeiro) and director of ITS-Rio (Institute of Technology and Society)
Souza does not anticipate that the agency will begin applying punishments in the short term, as he considers that it will have to adopt similar conduct to that which it has been taking in other matters under its umbrella and which he classifies as cautious.
In addition to hoping that there will be a more collective construction prior to the application of sanctions, with public consultations and publication of guidance guides, Souza also talks about possible operational obstacles and questions whether the body has sufficient technical staff related to content moderation.
“These demands are almost like a second impact that the ANPD suffers, in a shake-up of its structures, its functions, its missions, in the end”, he says.
Regarding the government’s option to issue a decree, in general terms, he states that it will be necessary to analyze the exact text, to assess whether it does not exceed what would be possible to do with this type of legal instrument.
And he highlights that there is a “non-negligible risk that part of the articles could be interpreted as a restriction on fundamental rights”, adding that this could not be done by decree, but would require a law.
Paulo Rená da Silva Santarém, doctor in law, State and Constitution at UnB (University of Brasília), says that the ANPD’s role will not be to assess whether specific content is legal or not, but rather to assess whether companies’ behavior is appropriate.
He, who was manager of the collective drafting process of the Marco Civil da Internet at the Ministry of Justice, in 2009 and 2010, also states that in cases of “split balls”, the balance to resolve the cases will still be the Judiciary.
Asked whether there would be no risk of censorship of certain speeches, he says that the main antidote against abuse is the guarantee that the user is duly warned about measures taken by the platforms themselves, with an indication of the possibility of appealing.
“So, if I was the victim of abuse, of an error, in the removal, I can trigger due process to assert freedom of expression. And this directly with the platform.”
For him, the main problem, in fact, is the risk of inertia. “A big risk is for the ANPD to stand still in the face of the entire new range of tasks in which it has to act. Which is not small and is not at all simple”, says Rená.
