Whose responsibility is the truth? Why Brazil’s ‘fake news’ law keeps stalling.

To some, it’s the “fake news” law; for others, a censorship bill. In Brazil, the Law on Freedom, Responsibility, and Transparency on the Internet has been the subject of fierce debate: Who, if anyone, is responsible for safeguarding the truth online?

The legislation was first put on the table in 2020 to curb misinformation following an election cycle dominated by unvetted information shared on social media and won by Jair Bolsonaro. “Fake news” – pronounced in English – quickly became a household term and a growing concern across Brazil. The COVID-19 pandemic raised the stakes of misinformation. 

The law was quickly approved in the Senate but has yet to be voted on in the Chamber of Deputies, where it has faced intense pushback. Supporters are hopeful a vote will be rescheduled this term, which began this month.

Proponents see the legislation as an opportunity to rein in the power of large social media platforms in Brazil, holding them accountable for the unfettered spread of content from which they profit. Critics view it as a threat to freedom of expression that puts too much of the onus on corporations. Some say the responsibility needs to be shared. 

“It is not up to the companies alone, nor to the state alone,” says Rafael Zanatta, executive director of the nonprofit organization Data Privacy Brasil Research Association. “This also involves communities and citizens. ... There is no single leviathan that can protect us all.”

“Real freedom”?

The legislation gained new steam following Jan. 8 riots in Brasília, which have been blamed on widely disseminated claims that last year’s presidential election was rigged. Growing attacks in schools, linked to online hate speech, have added urgency to the issue. 

“The scene today is worrying. Things can’t continue the way they are,” says Davi Brito, a law student in Rio de Janeiro who plans to become a pastor. He understands concerns about freedom of expression, in particular when it comes to religious freedom, but holds that “extreme freedom, without any limitations, isn’t real freedom.” 

At the same time, he wonders about government overreach. In Brazil, WhatsApp is the primary channel of communication, and three-quarters of the population uses one of the other large social media platforms, including Facebook, Instagram, and Twitter (now known as X). 

“Every government tries to benefit itself somehow,” Mr. Brito says. “I’m scared the law could be used in that way.” 

Brazilian President Luiz Inácio “Lula” da Silva has confronted false information head-on since taking office, launching a working group focused on hate speech and misinformation as well as a website dedicated to debunking fake news about the federal government and its projects.

If approved, PL 2630, as the law is formally known, would hold large social media companies, including messaging apps like WhatsApp, legally responsible for monetized content containing “untrue facts” as well as content that could incite crimes, such as terrorism, racism, and violence against minors and women. Under the current Internet Civil Framework, social media platforms are not responsible for content shared on their sites and are only required to remove content if ordered by a court. 

“Underlying factors”

When the bill was first passed in the Senate, the United Nations Human Rights Council sent a letter to the government of Brazil noting it was “seriously concerned” about potential violations to freedom of expression. 

In a 2021 UNHCR report on disinformation, the current special rapporteur on freedom of speech contends that any restrictions to freedom of speech “must be exceptional and narrowly construed.” The report urges governments to consider underlying factors of widespread misinformation, noting that disinformation is “not the cause but the consequence of societal crises and the breakdown of public trust in institutions.”

That stance helps explain why many regular Brazilians are on the fence. 

“Lots of lives were lost due to fake news,” says Hércules Faria, a history student at the Federal University of Rio de Janeiro, referring to misinformation spread during the COVID-19 pandemic. Yet it’s not always easy to define fake news. Though he doesn’t believe Brazil is heading toward anything resembling the authoritarian dictatorship that prevailed until 1984, he has reservations about the potential implementation of the law.

“I’ve heard lots of people say that it would be a type of censorship, but I don’t know to what extent that’s true,” he says. “I would find it very necessary that there be transparency of the body that’s going to be implementing this. That’s a must.” 

Others are more willing to trust those moderating content.

“I don’t see it as censorship. It is possible to know if something is a lie or not,” says Denise Faria, a retired high school history teacher and longtime Lula supporter.

Countries around the world are grappling with how to oversee social media platforms. Australia passed the Online Safety Act in 2021 to regulate the removal of harmful content online. The European Union’s Digital Services Act of 2022 aims, in part, to tackle the spread of disinformation. In the United States, most state legislatures have introduced some kind of bill for regulating social media, ranging from banning content censorship to requiring new mechanisms for reporting and removing hate speech.

Meanwhile, fake news laws have been used in Russia and Turkey to crack down on opposition voices.

Who decides “the truth”?

In Brazil, Big Tech companies have campaigned forcefully against the legislation. In the lead-up to a planned vote in the Chamber of Deputies in May, Google users saw a message on the search engine’s homepage saying the law could “increase confusion about what is true or false,” which linked out to an opinion article criticizing the bill. The next day, Google was given two hours to take it down. Messaging app Telegram sent a note to users warning them that the bill is “one of the most dangerous ever considered in Brazil.” 

“The platforms spent much more money to campaign against the bill here in Brazil than they did, for example, in Europe, which has a broader regulatory tradition than ours,” says Bia Barbosa, advocacy manager for the Latin America bureau of Reporters Without Borders. Wherever they operate, she says, the platforms position themselves against any mechanism that will “result in the possibility of reducing their profits [or] generate responsibility for the content that circulates.”

Some civil society organizations have been vocal in their support of PL 2630; over a dozen groups signed an open letter highlighting the need for transparency and accountability on the part of social media companies. These companies generally follow their own content moderation policies. Advocates for the bill worry about the false and hateful posts that make it through the cracks.

“Self-regulation is not enough to ensure that the internet is a healthy environment,” says Ms. Barbosa.

Others argue that misinformation is better fought by improving civic education and media literacy, empowering regular citizens to discern fact from fiction. And even advocates see issues with the bill as it stands. For example, it lacks a provision for an autonomous and independent authority that would enforce and regulate the legislation. 

For Mr. Brito, that’s the sticking point: “Who’s going to have the right to determine what is truth?”