The path chosen by the Lula (PT) government of , assigning new functions to a regulatory agency through a decree, generates debate about the legality of the measure, according to lawyers and law professors interviewed by the Sheet.
One of the most controversial points would be to have a series of platform obligations arising from a judgment by the (Supreme Federal Court), without approval from Congress.
Last week, the president updated a 2016 decree that regulated . One of the arguments is that the text would be outdated in light of the court’s decision.
After the publication of this decree —along with a second one aimed at protecting women online—, different proposals sought to overturn them.
In the new decree, the government establishes that the ANPD, a body linked to the Ministry of Justice, “will act in the regulation, inspection and investigation of infractions regarding the guarantee of users’ rights and the fulfillment of the duties of internet application providers”, citing a series of items from the decree itself and stating that this will be in accordance with other laws.
Body initially responsible only for supervising legislation on personal data, ANPD was recently transformed into a regulatory agency, and started to accumulate the law that defines duties related to children and adolescents for platforms
HAS Sheet The government says that the criticism that the decree assigns functions to the agency that would depend on law is unfounded. According to the government, the text “does not create new powers for the ANPD, but regulates duties that are already provided for by law or were included in the Civil Framework due to the additive nature of the STF decision.” The note also states that the ANPD was included in the 2016 decree along the same lines as other agencies and that the text “only details how these powers will be exercised in the context of the obligations foreseen for providers and digital platforms”.
In the assessment of Ana Laura Pereira Barbosa, law professor at ESPM (Escola Superior de Propaganda e Marketing), the functions that the decree attributes to the ANPD are relatively distant from those described in the LGPD (), where the responsibilities of this body are established in law.
She states that an expansion of this type would depend on law and that, therefore, this point in the decree could be considered illegal. “The procedure is not a mere formality, because a precedent now will apply to procedural decisions in the future”, she argues.
Artur Pericles Lima Monteiro, doctor in constitutional law from USP (University of São Paulo) and professor at Yale University, also assesses that this aspect would have to have been defined by law. For him, the wording of the decree leaves no doubt that new responsibilities were created for the ANPD.
Monteiro also argues that the situation is different from that of the 2016 decree, in which other regulatory entities were cited. In that case, he says, the legal powers of these entities would only be reaffirmed. “The law creates the ANPD as a data protection agency. It is last week’s decree that transforms it into the data protection and ‘platforms’ agency”, he states.
Ivar Hartmann, law professor at Insper, also considers that this aspect of the attribution leads to a debate about the legality of the measure. According to him, the STF’s decision does not replace the legislator’s choice. He also states that the decree not only details information about competencies defined by Congress, including in comparison to the Digital ECA. “These are much broader skills, with much greater impact.”
Although the ANPD was also appointed to supervise the ECA Digital via decree, the three assess that there are legal distinctions between the two scenarios, both in scope and form.
As for the rest of the text, in general terms, those interviewed by Sheet They say that, even though decrees generally regulate laws, the rules published by the government on social networks would need to be understood within the context of the Supreme Court’s decision.
Heloisa Massaro, director of research and operations at InternetLab, an organization specializing in internet policies, says that the ideal path would have been to approve a law in the Legislature, but that, given the STF’s decision, the government decree seeks to organize the scenario. For her, the decree brings more predictability because it allows complex obligations provided for by the Supreme Court to be addressed in a centralized way and with homogeneous parameters.
There are also those who point out, on the other hand, that some of the items in the decree even exceeded what was decided by the court, as well as, positively, that there are provisions that would bring greater protection to freedom of expression than the STF’s verdict.
One of the intentions is for the agency to start supervising, for example, whether effective measures are being taken to combat illegal content listed by the Supreme Court. The text states that the authority is prohibited from notifying providers regarding isolated content and that the analysis must take place regarding the occurrence of a “systemic failure”.
In , the Steering Committee in Brazil (CGI.br), which is made up of members of the government, civil society, the technical community and companies, said that the attribution of powers to the ANPD in the decree “is consistent with the powers already assigned” to the body in the ECA Digital.
On the part of companies, the criticism is that the Executive’s measures have brought greater legal uncertainty. In an open letter, the Brazilian Chamber of Digital Economy () speaks of the weakening of “regulatory predictability” and that the STF’s decision was handed down without unanimity and is still subject to appeal.
André Giacchetta, a lawyer who works on behalf of digital platforms and is a partner at the Pinheiro Neto law firm, says that the argument that the decrees seek to give concreteness to the Supreme Court’s decision is contradictory. “It is not up to a presidential decree to interpret a judicial decision. The summons, the guidance, from the Supreme Court went to the .”
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”. One of the main conflicts that contributed to halting the discussion on the text, reported at the time by deputy Orlando Silva (PC do B-SP), was the decision on who would oversee the rules that would be established by the project.
