Brazil’s president Jair Bolsonaro’s ascent to power attracted international attention for their potential impact on human rights. His highly controversial positions on Brazil’s past military dictatorship, civil rights and his greater support for conservative agenda is very likely to jeopardize freedom of expression and the nation’s fragile democracy. Bolsonaro’s ascent to power has not been welcomed by people around the globe. His blind eye towards democracy has created a human rights crisis in Brazil. In 2017, violence reached a new record in the books of Brazil with an estimated 64,000 killings. More than 1.2 million cases of domestic violence were pending in the courts at the start of 2018. About 5,144 people were killed due to police brutality in 2017 and weakening state control of prisons has facilitated gang recruitments. Brazil has lost over 100,000 people to COVID-19, the pandemic which Bolsonaro strongly repudiated as a conspiracy. The president’s desperate authoritarian attempts to forcibly seize control has pushed the nation into a political crisis inter alia free fall of the economy, a pandemic, a human rights crisis and a democratic recession. “This is the worst crisis Brazil has faced in its history. It’s a political crisis, an economic crisis, and a public health crisis. I’ve thought about this a lot, and I can’t think of another moment when the country was in worse shape than it is right now.” These are the exact words of Professor James Green, a Brazilian studies teacher at Brown University, a man who has lived through the military dictatorship in Brazil which lasted from 1964 to 1985.
Amidst these crises, Bolsonaro has periled the integrity and autonomy of Brazil’s most vital democratic institutions. In May 2020, the scandalous president even contemplated ramping up the military to shut down Brazil’s Supreme Court as they continued investigations into his network of advisors and his family. The anti-terrorism bills pushed in the senate after the ascent of Bolsonaro is another key example of endangerment to democracy. The vague and broad definitions of terrorism in the bill potentially criminalizes protests and even basic social movements. These are inconsistent with the standard of precision that Brazilian criminal law maintains. The capricious characterization of a “terrorist act” leaves the door open to subjective and arbitrary decisions which is not new to the nation.
The anti-terrorism bill says that it is “terrorist act” to interfere or tamper computer systems or databases with any political or ideological motivation even without a malicious intent. This would jeopardize the work of several security researchers and journalists in Brazil. Unfortunately, they are not alone.
On 30th June 2020, the Senate of brazil passed the PLS 2630/2020 (Law of Freedom, Liability, and Transparency on the Internet) popularly known as the fake-news law. Fake news has definitely been a problem all over the world. 17 states have passed some form of regulation directing disinformation during the pandemic. The term “fake-news” has been engraved in the global political discourse in the last half decade. With the decline in global levels of press freedom, the domino effect of so-called “fake-news laws” is attracting some serious risks to press freedom and freedom of expression. It is certain that Bolsonaro took advantage of the pandemic situation and passed the fake-news law with the excuse of COVID-19 misinformation. There are several underlying concerns and apprehensions about this law.
- Traceability requirements for private messaging services like WhatsApp and Signal would require the apps to store the logs and records of “broadcasted messages” which implies all the messages sent by over 5 users which reaches at least 1000 people within the span of three months. Messaging service companies are required to report most of the information to the government of Brazil hence creating a centralized log of data interactions. This breaks the end-to-end encryption service provided to the users by some of the messaging apps. If companies do not oblige to weaken the technical protection given to the users of Brazil, the bill forces them to leave the country.
This imposition of “tech mandate” was condemned by Electronic Frontier Foundation (EFF) as they called it out for weakening privacy protection. Attached to this is a “technical capability derivative”, whether or not platforms will be able to trace back individual messages.
- Article 37 of the law mandates all the private messaging and social networking apps having a customer base in Brazil to appoint a legal representative who will have the power to remotely access user logs and databases. This pseudo attempt to localize the measures not just gives rise to privacy concerns but also questions if the Brazilian Senate has undermined United States’ laws such as Electronic Communication Privacy Act and CLOUD Act. Both of these laws mandate US-based social networking service providers to follow and check certain legal safeguard before handing the private data to any foreign law enforcement agents.
- If any social media account is reported to be inauthentic or automated, the online platform would have to confirm the identity of the user and verify the identity with any government ID in Brazil or a passport for a foreigner. The government can also demand confirmation of identity for any account through the means of a court order. This provision broadly attacks anonymity and privacy of users online and ignores its benefits on the internet such as whistle blowing and protection from stalkers.
- This law also makes it illegal to create or share any content online which may pose a risk to” economic order or social peace” in Brazil. Both of these terms are vaguely defined and even vaguely present. This opens gates to a wide range of content creators to be called out as “illegal”. The law also criminalizes intentionally being a member of an online group whose main activity is sharing defamatory content. This includes all meme groups which primarily share memes about anyone in an authoritative position in Brazil. This definitely puts a subjective cap and poses significant challenges to the freedom of expression and restricts basic ability of Brazilians to engage in discourse on online platforms.
The fake-news law makes social media companies legally liable for content published online on their platforms which acts as an incentive to them to restrict the freedom of speech of Brazilians at the time of any social or political unrest or even times like the present. While Brazil faces a real problem of fake news, this hastily written statute is not the right solution. At the time of a pandemic, when most of the world is functioning on a virtual sphere, the reckless fake-news law has added weight onto the fragile thread holding Brazil’s democracy. Jair Bolsonaro has managed to push democracy to a breaking point even without the drastic steps that he earlier contemplated.