Put Leonardo Neri and Barbara Oliveira  – 01/07/2020

Yesterday, June 30, the Senate approved Bill No. 2,630/2020, authored by Senator Alessandro Vieira (CIDADANIA/SE), in the form of a substitute text, which institutes the Brazilian Law of Freedom, Responsibility and Transparency on the Internet, also called PL das Fake News. Bill 2,630/2020 is still awaiting analysis and voting in the Chamber of Deputies.

The establishment of the new legislation aims to combat the spread of inauthentic information, with the adoption of measures to control the promotion of digital content, while preserving the right to freedom of expression.

Bill 2,630/2020 applies to social media and private messaging service providers, as long as they have more than 2 million registered users and, furthermore, as long as they offer services to the Brazilian public, even if headquartered abroad, or have at least one member of the same economic group with an establishment in Brazil.

Thus, social networks and messaging service providers are required to adopt the necessary measures to prohibit inauthentic accounts and/or unidentified automated accounts, as well as to identify all promoted and advertising content. To this end, they must provide technical measures to identify accounts that display activity incompatible with human capacity, in addition to developing usage policies that limit the number of accounts controlled by the same user.

In certain cases, providers are authorized to require confirmation of user identification by presenting a valid identity document. Furthermore, techniques must be developed to detect registration fraud and account use that is not in accordance with the law.

As for messaging services that are linked exclusively to the user's cell phone number, they must make it possible to suspend the accounts of users who have had their contracts terminated with telephone operators.

In order to guarantee the right to freedom of expression and access to information, providers shall be responsible for providing mechanisms for appeal and due process. Furthermore, if there is a complaint or application of measures by the provider, the user must be notified of the grounds, the analysis process and the application of the measure, and warned of the deadlines and procedures for filing any objection. Notification of the user shall be waived if there is a risk of:

• Immediate irreparable or difficult to repair damage;
• Information or user security;
• Violation of the rights of children or adolescents;
• Crimes defined in Law 7,716/89, which defines crimes resulting from racial or color prejudice;
• Serious compromise of the usability, integrity or stability of the application.

With the main objective of guaranteeing transparency of information, Bill 2,630/2020 establishes the mandatory production of quarterly transparency reports by providers, with information regarding procedures and decisions regarding the treatment of content generated in Brazil, in addition to the measures adopted in compliance with the legislation, which must be made available on the provider's website, in Portuguese.

Bill 2,630/2020 also provides for the creation of the Internet Transparency and Accountability Council, composed of 21 councilors, which must be created by the National Congress within 60 days of the publication of the law and will be responsible for carrying out studies, opinions and recommendations on freedom, responsibility and transparency on the internet. The council will also be responsible for monitoring and regulating the measures to be adopted by providers.

Providers are also authorized to create a self-regulatory institution, which must be certified by the Internet Transparency and Accountability Council.

To ensure the effectiveness of the provisions, Bill 2,630/2020 provides for the application of warning penalties, with the indication of a deadline for correction, or, even, a fine of up to 10% of the group's revenue in Brazil in the last fiscal year. To apply the sanctions, the proportionality criterion must be observed, with the analysis of the economic condition of the offending agent, as well as the consequences of the infraction for the community and, also, possible recidivism.