Settled Human Rights Standards as Building Blocks for Platform Accountability and Regulation: A Contribution to the Brazilian Debate

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Since at least a decade ago, human rights institutions have acknowledged the enabling potential of the internet to realize a range of human rights. Digital technologies have been incredibly transformative tools for allowing people to speak out against arbitrary acts of public and private powers, empowering the expression of historically vulnerable, marginalized and silenced groups, catalyzing civic organization and participation, and facilitating innovative ways to collectively build and share knowledge. Since then, the right to seek, receive, and impart information has enabled the exercise of other rights and strengthened the internet ecosystem, but not without backlashes and critical challenges.

The current discussion about platform regulation in Brazil, both in the draft bill known as “PL 2630”  and in constitutional cases pending in the country’s Supreme Court, demonstrates that much effort is going into addressing these challenges, but also shows that proper responses are not simple to craft. We should be able to tailor these responses safeguarding the positive potential of digital technologies and the essential role freedom of expression, including access to information, plays in preserving democratic societies.

Quick Background

The PL 2630, also known as the “Fake News Bill”, was first introduced in the Brazilian Senate in 2020. The push from civil society organizations and coalitions, such as Coalizão Direitos na Rede, to improve the text and their work with the bill’s rapporteur in the Chamber of Deputies were critical to neutralize threats like the traceability mandate of end-to-end encrypted messages. By then, Brazilian digital rights groups had also stressed that the regulation should focus on content moderation processes (e.g. transparency and due process rules) rather than restriction of certain types of content. After the release of a new draft text in early 2022, the bill remained halted in Brazil’s Chamber of Deputies until the beginning of 2023.

Following the failed attempt earlier this year of the far right to overthrow the new administration of President Lula da Silva and a peak of violent attacks in Brazilian schools, PL 2630 has consolidated its position as the legislative path to address more comprehensive concerns on the use of digital technologies in contexts of social unrest. For that, the Executive branch proposed to the bill’s rapporteur a new text that introduced several changes, looking at laws like the German NetzDG, the EU Digital Services Act (DSA), and draft legislations such as the controversial UK Online Safety Bill .

The latest published version of the bill incorporates some of these proposals, such as risk assessment rules, duty of care obligations, and new exceptions to Brazil’s general rule to online intermediary liability. According to Article 2 of the bill, it applies to social networks, search mechanisms, and instant messaging services constituted as a legal entity and with more than ten million monthly users in Brazil. Although the DSA is often mentioned as an inspiration and democratic precedent grounding the new proposal, the revamped bill has important differences and still fails to ensure checks and balances considering the Brazilian context and institutional framework.  

In parallel, the country's Supreme Court has pending cases about online intermediary liability (general repercus&l