Mundie Advogados

A month ago, congressman Orlando Silva (PCdoB-SP) handed out to the Brazilian National Congress his Preliminary Opinion regarding the Bill 2630/2020, also known as "Fake News Bill", which had, in its origin, the main purpose of establishing rules, instruments and mechanisms to fight the dissemination of fake news in digital platforms with a relevant number of users, such as social networks and private messaging services operating in Brazil. After more than three years being analyzed by the Brazilian National Congress, the Bill has become a true attempt to discipline the digital services provided by these platforms nationwide.

Amongst the main aspects of the Bill (as filed by congressman Orlando Silva on April 27 and not yet been taken to be voted by the Congress) are the establishment of traceability mechanisms for messages sent on private messaging services, the requirement of verified accounts for users with broad reach (such as influencers and public figures), the implementation of content moderation policies by the technology companies regulated by the Bill, as well as possible liability and sanctions for non-compliance with the law, and obligations and duties of transparency and care.

In this sense, the Bill has the potential to positively impact the digital ecosystem in Brazil, as it proposes significant changes in the way social media platforms and messaging services deal with illegal content, especially those related to crimes against the democratic rule of law, acts of terrorism and terrorism preparation, crimes of inducement, instigation, or aid to suicide or self-mutilation, crimes of racism, among others. However, it has also been a subject of controversy and debate, with concerns raised over issues such as freedom of speech, privacy, and the protection of users′ personal data.

Regarding the regulatory aspect of the Bill, differently from what was proposed by the federal executive branch during the analysis of the Bill by the Congress, the final text suggested by congressman Orlando Silva suppressed the creation of a regulatory agency, whose attribution would be to act in cases of risk to fundamental rights or non-compliance with the law by digital platforms. However, the suppression of provision regarding the regulatory agency does not mean that the idea was forgotten by the government, congressmen, or the market. On the contrary, in the last few weeks, interesting academic, journalistic and political debates have unfolded on the topic, which resulted in articles, letters and protocols from several sectors of the society suggesting various structures for the creation and implementation of such new regulatory body. 

Amongst the main suggestions, the one that has attracted most of the debate is the allocation of the duties of such body to the existing structure of the National Telecommunications Agency (ANATEL), which aims at absorbing the regulation of digital platforms by the technical structure of an existing regulatory agency and avoiding the budgetary implications related to the creation of a new one.

The defenders of this proposal sustain, in short, that ANATEL should be the most natural choice of the legislator, since it already has its own budget allocation, as well as recognized expertise and technical staff in the communications area.

Regarding the first point, it is argued that, in order to act as a regulatory agency of digital platforms, ANATEL would only require the hiring of new employees specific to the performance of such function. According to ANATEL [1], the new functions would be performed by the Superintendency of Digital Rights and Services, which would be added to the eight existing superintendencies. Thus, this alternative would prove to be more cost-effective than creating a completely new federal agency.

Regarding ANATEL′s expertise in regulatory matters, it is argued that the agency, in its nearly 30 years of existence, has already proven its ability to act as a responsive regulatory agency, having processed more than one hundred thousand administrative cases. Thus, given ANATEL′s regulatory and sanctioning track record, the risks of untechnical or erroneous decisions regarding the Bill′s enforcement, when and if it comes into force, would be reduced.

However, the defense of ANATEL as the natural body for enforcement and supervision of the Bill is not unanimous and has been confronted with suggestions of using other already existing bodies, such as the National Agency for Data Protection (ANPD) and the Managing Committee of the Internet in Brazil (CGI.br), or even confronted with the creation of a new and specific agency. 

In this sense, the Special Commission on Digital Law of the Federal Council of the Brazilian Bar Association (OAB) suggested the creation of the Brazilian System for Regulation of Digital Platforms (SBRPD), which would be divided into three parts, namely:

(i) Digital Policy Council (CPD), the decision-making body in charge of monitoring and implementing the legally defined guidelines and regulatory obligations of digital platforms, which would be composed of members appointed by the three branches of government, in addition to appointments from ANATEL, Administrative Council for Economic Defense (CADE), ANPD and OAB;

(ii) CGI.br, responsible for fostering discussions on the subject in Brazil through studies, recommendations, and guidelines; and

(iii) a private self-regulatory entity in charge of making decisions on specific cases of content moderation on digital platforms.

From the regulatory and sanctioning point of view, both the choice of an existing agency (such as ANATEL or ANPD) and the creation of a new agency are aligned with the guidelines of the Digital Services Act, the digital services regulation law currently in force in the European Union, which is, for now, the best benchmark for Brazil in terms of regulation of digital platforms and services and the fight against misinformation. According to these guidelines, the agencies responsible for the regulation of digital services in the EU members must meet, at least, the following requirements:

(i) perform their functions in an impartial, transparent and timely manner;

(ii) have sufficient technical, financial, and human resources for the proper supervision of their regulated agents; and

(iii) act with complete independence, always remaining free from any external influence, whether direct or indirect, and shall neither seek nor take instructions from any other public authority or any private party. 

The Digital Services Act requires EU members to appoint their Digital Services Coordinators (DSC) by February 17th, 2024, for which reason several countries are still in the process of choosing them. As example and comparison, Ireland, for now, has opted for the creation of a new body, the Coimisiún na Meán (Media Commission), whilst France has been preparing a bill appointing the Autorité de Régulation de la Communication Audiovisuelle et Numérique (Audiovisual and Digital Communication Regulatory Authority), its new digital services agency, created on January 1st, 2022; Italy is considering appointing the Autorità per le Garanzie nelle Comunicazioni (Communications Guarantee Authority) and, as for Germany, the government is likely to opt for extending the competence of an existing body, being considered for such purpose the Bundesnetzagentur (Federal Network Agency), created in 1998.

From an economic point of view, in fact, the creation of a Brazilian Digital Platform Regulation System could demand higher initial expenses than the simple incorporation of new functions to the existing structure of ANATEL, ANPD or any other federal regulatory agency. On the other hand, it is well known that neither agency currently has enough staff to perform the functions of a digital services’ regulatory agency. ANATEL itself has recently stated [2] that it would need to replenish its staff (which currently has a deficit of 402 employees) to perform such functions. Furthermore, with similar human resources restrictions, the ANPD started its activities without its own staff, and its technical staff was mostly composed of employees requested from other federal agencies. Thus, both the creation of a new agency and the use of existing federal agencies would invariably require the hiring of new employees and the creation of new structures, whether superintendencies, bodies, or agencies of larger or smaller sizes.

Furthermore, regardless of the agency that will be chosen or created to perform the regulation and sanctioning functions foreseen by the Bill 2630/2020, and considering that there will be adequate technical, financial and human resources, it is important to stress that, in any hypothesis, such agency must always remain free from any external political and economic influence, whether direct or indirect, and must not be subordinated to any public authority or hijacked by private interests, thus meeting each of the minimum requirements established by the European Digital Services Act, which we recommend should also be reflected in the Bill and, consequently, in the law that will regulate digital services and platforms in Brazil. 

Therefore, even though the final report of Bill 2630/2020 has suppressed the creation of a regulatory agency for the application and supervision of the law, it is a fact that the discussion about the theme was not exhausted in such report and will continue to be a relevant topic until the Bill is voted on, with its current or alternative wording. Thus, the existence of an autonomous and independent agency (in its political, technical, and budgetary aspects) becomes indispensable for the achievement and effectiveness of the guidelines set forth in the Bill 2630/2020 and for the restoration of a healthy and socially virtuous Brazilian digital ecosystem.

Matheus Facio

Cesar R. Carvalho

Beatriz Lindoso