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01/11/2021

On September 6, the President of the Republic issued Provisional Measure (PM) No. 1.068/2021, which amends the Civil Rights Framework for the Internet in Brazil (Law No. 12,965/2014) and the Copyright Law (Law No. 9,610/1998) to regulate the use of social networks.

 

Among the main changes brought by the PM we highlight the following:

 

In Article 1 of the Civil Rights Framework for the Internet was included a provision that its rules apply even if internet use activities in Brazil are carried out by legal entities headquartered abroad, provided that they offer a service to the Brazilian public or at least by one legal entity of the economic group located abroad has an establishment in Brazil.

 

The PM also included in the list of art. 5 of Civil Rights Framework for the Internet the definition of social network (inc. IX) and moderation in social networks (inc. X). According to the PM, internet applications for the exchange of instant messages and voice calls and those whose main purpose is the feasibility of trade in goods or services are not included in the definition of a social network.

 

The PM included new provisions on social network users’ rights and guarantees (art. 8-A), such as (i) access to clear, public and objective information about the means of moderation used by social network providers, whether by decision human or automated, (ii) contradictory, full defense and appeal to be mandatorily used in content moderation, and the social media provider must offer at least one electronic communication channel for the exercise of these rights by the user, (iii) restitution of the content made available by the user (personal data, texts, images), when there is a request, (iv) reestablishment of the account, profile or content in case of undue moderation, (v) non-exclusion, cancellation or suspension, in whole or in part, except for fair cause (arts. 8-B and C), of services and features of the account or profile and the content generated by the user and (vi) access to a summary of the terms of use of the social network.

 

It was forbidden for social media providers to moderate the content in a way that would imply political, ideological, scientific, artistic, or religious censorship (art. 8-A, sole paragraph of Civil Rights Framework for the Internet).

 

The PM provided for the procedure for notifying users about the exclusion, cancellation, or suspension, in whole or in part, of services and features of the account or profile on the social network (art. 8 – B, §§ 2 and 3 of Civil Rights Framework for the Internet), and granted a 30-day deadline, starting September 6, 2021, for social network providers to adapt their policies and terms of use to the new norms of the Civil Rights Framework for the Internet (art. 3).

 

In addition, sanctions were created under the Civil Rights Framework for the Internet (art. 28-A) for violations of the norms provided for in arts. 8- A, B and C, 10 and 11, without prejudice to other applicable civil, criminal or administrative sanctions. Among the sanctions are: (i) warning, with a deadline for adoption of the corrective measure, (ii) fine of up to 10% of the economic group’s revenue in the country in its last fiscal year, excluding taxes, considering the economic condition of the offender and the proportionality between the seriousness of the fault and the intensity of the sanction, (iii) daily fine, limited to the maximum amount provided for in the previous item and (iv) temporary suspension or prohibition of the exercise of activities involving the operation of collection, storage, custody and treatment of records, personal data or communications by internet connection and application providers (art. 11).

 

The sanctions provided for in art. 28-A will be applied by the administrative authority, within the scope of its powers, individually or cumulatively, including by precautionary measure, antecedent, or incident of administrative procedure.

 

Although it still depends on conversion into law, PM 1.068/2021 is already the object of a direct action of unconstitutionality at the Supreme Court. The lawsuit, proposed by the Brazilian Socialist Party, argues that the PM, by restricting content moderation, excluded the possibility of taking down profiles that disseminate fake news. The cases shall have further developments before the Supreme Court.