Decree No. 12,975, which generated a lot of noise and little reflection, as has been common in our polarized political scenario. Without ignoring the legal controversies regarding its form and scope, there is a relevant issue to face. How can we impose real duties on platforms without creating space for a state authority to pressure political discourse?
There is reason to act, because these companies already moderate content, sell promotion and can influence the public debate with little transparency. At the same time, all State action on the circulation of information requires clear limits, so that necessary regulation does not become an instrument of control.
The decree itself appears to take important precautions. He adopts the idea of systemic failure, not automatic punishment for isolated content. It also determines that the context of publications be considered, including informative purposes, criticism, satire, parody and religious freedom. These brakes preserve the difference between criminal content and legitimate expression of opinion, however uncomfortable.
This does not eliminate loopholes. The first is the inclusion, among the hypotheses for removing publications, of institutions and the electoral process. These are serious acts, provided for in the Penal Code, and not simple opinions. But the application of this provision will require rigor. Freedom of expression cannot serve as a shield for these acts, nor should charges, challenges and complaints against authorities be confused with them.
The second loophole appears in the provision that determines the removal, after notification, of content that constitutes misleading, abusive or fraudulent advertising. The purpose is legitimate in combating fraud and scams against consumers. The sensitive point is that the decree allows the AGU to act when advertising is related to public policies – and the body itself has already stated that it will defend these policies when they are threatened by disinformation. This is an open category, which requires caution.
A paid campaign can criticize a government program or question its results without becoming fraudulent advertising just by contradicting the official narrative. To avoid abuses, removal should depend on objective demonstration of falsehood, intention to deceive and concrete risk to the citizen, with a reasoned decision and the possibility of contestation.
The role of the ANPD also deserves attention. A, reporting channels, advertisements, boosts and structural failures. However, you should not become a moderator of specific publications. The very logic of the decree points in this direction by prohibiting individualized notifications by the competent authority.
This care is important because the ANPD has formal autonomy, but is not outside the orbit of the federal Executive. It is necessary to prevent technical inspection from turning into political pressure. The more sensitive the issue, the greater the demand for transparency and public motivation.
Implementing this decree now will possibly mean suffering its consequences later. The stick that hits Jair, hits Luiz. And vice versa. It is not appropriate for any ideological field for a state authority to arbitrate, even indirectly, the limits of public discourse. It would also be inappropriate to leave this function solely in the hands of big tech, which already acts as private rulers of freedom of expression online – one of the themes of my book “Humanity and digital power”.
In the regulation to come, it will be essential not to generate new gray areas. Having an opinion contrary to those on duty is neither a crime nor fraud, and cannot be treated as a systemic risk. The digital public square should not be governed by the private interests of the platforms, much less by the political convenience of those in power.
