Key Vote Expected on Brazil’s Social Media and Instant Messaging Regulatory Framework

Key Vote Expected on Brazil’s Social Media and Instant Messaging Regulatory Framework

April 25, 2023, Covington Alert

This week, the lower house of the Brazilian Congress is scheduled to vote on a motion of urgency that may fast-track approval of the country’s so-called “Fake News Bill,” a new regulatory framework for social media and instant messaging companies.

If approved, the motion will allow the Speaker of the House to skip the regular commission mark-up process and take the Fake News Bill directly to a floor vote. The Speaker might even bring the bill for a vote this week.

The Fake News Bill was originally devised as a way to curb fake news creation, distribution and financing, conducts that are widely perceived as having had a substantial impact on Brazil’s 2018 presidential election.

However, the current version, formally known as the “Brazilian Internet Freedom, Responsibility and Transparency Act,” establishes a wide-ranging regulatory framework for social media, instant messaging applications and search engines with more than 10 million Brazilian users. The act is the most significant legislation on the internet since the approval of the 2014 Internet Civil Framework Act and the 2018 Data Protection Act.

The bill is seen by the administration as part of its effort to protect Brazilian democracy from undemocratic threats. It has substantial support among parties on the left and the right, with the exception of the opposition bloc linked to former president Jair Bolsonaro.  If approved by the lower house, the bill will then move on to the Senate, where the administration seems to have enough votes to get it approved.

The legislation creates a set of new obligations to social media and instant messaging companies, including:

1. Requirements to have an in-country legal representative with substantial responsibilities;
2. Prohibition of unidentified automated accounts;
3. Adoption of measures to identify accounts with activity patterns incompatible with human capacity;
4. Identification of all financed marketing and pushed content;
5. Compliance with the 2018 Data Protection Act;
6. Adoption of notification, access and appeal mechanisms related to content moderation;
7. Adoption of specific processes when pushing election-related content;
8. Publication of transparency reports every two quarters, in Portuguese. This obligation is also applied to search engines; and
9. Payment for media-generated content.

It also creates new obligations specific to companies that manage instant messaging applications, including:

1. Adoption of limits to message distribution, including distribution lists;
2. Adoption of user consent to inclusion in groups and lists;
3. Removal of automatic user inclusion in groups and lists as default setting;
4. Prohibition on selling of any tool to support message mass distribution;
5. Adoption of mechanisms to identify and block third-party tools used for message mass distribution; and
6. Maintenance of data integrity and provision of user information by court determination.

The bill further establishes a number of obligations in connection with government accounts, including for elected officials, civil servants and government agencies, and attributes new responsibilities to Brazil’s Internet Steering Committee, including the creation of a Code of Conduct. It also allows companies to create their own organization to self-regulate aspects of their operation.

Finally, the bill establishes fines and sanctions for noncompliance, and determines that the promotion, financing and mass distribution of election-related fake news or content that might cause physical harm is a criminal offence.

The bill text is still being modified by its rapporteur and might be amended during the floor debate and vote.

Its approval can create a significant precedent for other countries in Latin America.

If you have any questions concerning the material discussed in this client alert, please contact Diego Bonomo in our Latin America Public Policy group.