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Despite Brazil possesses a National Constitution and a Penal Code designed to safeguard the rights of its citizens, there is a growing concern over recent events.
Traditionaly, in cases of slander or defamation, individuals always have recoursed to established laws and judicial procedures. In addition, government has introduced the ‘Marco Civil da Internet’ (or something like ‘Civil Rights Framework for the Internet’), a Brazilian Federal Law 12.965 (2014) that regulates the Internet in Brazil, aimed at regulating activities on social media.
However, some Brazilian authorities, seemingly placing themselves above the law, are advocating for the establishment of a ‘virtual police’ tasked with censoring online content that does not align with their subjective criteria. This proposal raises significant concerns regarding the encroachment on freedom of expression and the potential for abuse of power.
To underscore the unwarranted nature of a ‘police state’ approach, it is imperative to examine the provisions outlined in the existing Brazilian Civil Rights Framework for the Internet, which are detailed below:
Brazilian Civil Rights Framework for Internet
The Section III ensures freedom of opinion and expression, inviolability of communications and privacy of users in order to clarify and consolidate the constitutional principles 2 and fundamental rights and guarantees3 applicable in the virtual world as well, instead of the Draconian use of terms from the so-called Woke Agenda (such as “disinformation”, “far right”, “misinformation”, “fascism”, “malinformation”, “neo-Nazis”, “information disorder”, “vaccine hesitancy”, “hate speech”, “fake news” and many others) to craft narratives in order to censor those who are different in political views, race, religion, country of origin, or sexual orientation under the deceitful banner of freedom and democracy that dangerously flirt with totalitarian regimes or under a false sense of equality aimed at fostering segregation:
Section III
Liability for any damages arising from content generated by third parties
Article 18. The provider of connection to the Internet shall not be liable for civil damages resulting from content generated by third parties.
Article 19. In order to ensure freedom of expression4 and prevent censorship5, the provider of internet applications can only be subject to civil liability for damages resulting from content generated by third parties if, after a specific 6 court order 7, it does not take any steps to, within the framework of their service and within the time stated in the order, make unavailable the content that was identified as being unlawful, unless otherwise provided by law.
§ 1o The referred court order must include, under penalty of being null, clear 8 identification of the specific 9 content identified as infringing, allowing the unquestionable location of the material.
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¹ Rio de Janeiro State Bar Association #101.563.
2 “The Federative Republic of Brazil, formed by the permanent union of the states, the municipalities, and the Federal District, is a democratic State ruled by the law and founded on human dignity, social values of labor and free enterprise, and political pluralism.” [Constitution of the Federative Republic of Brazil, art. 1st., III, IV and V].
3 “All people are equal before the law, without any distinction whatsoever. Brazilians and foreigners residing in the country are ensured the inviolability of their right to life, liberty, equality, security, and property, under the following terms: expression of thought is free and anonymity is forbidden; the right of reply equivalent to the grievance is ensured, in addition to compensation for pecuniary loss, emotional distress or damages to reputation; freedom of conscience and of belief is inviolable; no person shall be deprived of rights due to religious belief or philosophical or political convictions, unless the person claims it to be exempted from legal obligations imposed on everyone and refuses to comply with an alternative provision established by law; personal intimacy, private life, honor and reputation are inviolable; the right to compensation for pecuniary loss or emotional distress due to their breach is ensured; access to information of public interest is ensured to everyone; the confidentiality of the source shall be safeguarded whenever necessary for the professional practice.” [Constitution of the Federative Republic of Brazil, art. 5th, IV, V, VI, VIII, X, and XIV]. About “political convictions,” see “political pluralism,” on which the rule of law is founded [note 3].
4 It refers to the right of free speech as the principal component of the preservation of human dignity on which the Federal Constitution of Brazil is based [“human dignity”; note 3].
5 “All people are equal before the law, without any distinction whatsoever. Brazilians and foreigners residing in the country are ensured the inviolability of their right to life, liberty, equality, security, and property under the following terms: the expression of intellectual, artistic, scientific, and communication activity is free, irrespective of censorship or license.” [Constitution of the Federative Republic of Brazil, art. 5th, III, IV, and V] and “any kind of censorship of a political, ideological, and artistic nature is forbidden.” [Constitution of the Federative Republic of Brazil, art. 220, §2nd.] About censorship of a political nature, see notes 3 and 4.
6 I.e., part of written or media content; not the whole page or media. Or a single post, but not a profile/channel.
7 It is clearly stated: an order that would be issued by a court order, not by operation of law.
8 The specific part of the content (part of the text or both the start and the end of the part of the in-text cited media, e.g.)
9 The location of digital information on the Internet (URL) is also mandatory.
A/N: Both terms “political pluralism” and “political convictions” do not refer to a multi-partisan electoral system but to the peaceful coexistence of citizens with different political ideologies.
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By Dawson Brandao: Press and Media Lawyer with over 20 years of career and legal practice in Brazil.