Updated: Aug 26, 2020
The government of Brazil, with the objective, to secure communication technologies and to avoid outstretch of violence-prone information in the public domain, recently came up with the ‘Fake News’ bill. The intention of the government is to change the transcribing procedures and add new kinds of identification methods for all internet users. It will result in an increase in the information to be gathered and reserved with the concerned authorities. This article aims to analyse “Brazilian Freedom, responsibility and Internet Transparency Law” Bill, (popularly known as the Fake-News Bill), the conjectures it holds within, effect on public and private messaging platforms from the perspective of the fundamental right of freedom of expression and the human right perspective. The said bill is still pending for approval by the Senate as on 25th July 2020.
The Problematic Provisions in the Bill
The bill gives power to the government to intervene in the technology and policy decisions by giving access to information available online directly to the government. This bypasses strong safeguards for user rights of existing international mechanisms such as Mutual Legal Assistance Treaties along-with the following lacunae:
Account Registration (Article 7) of the said bill requires social media firms or any such company, in the matters of complaints against ‘fake news’ to provide identifications of the users who are non-compliant with new ‘fake news’ regime discussed in the bill. So, the new arrangement in the bill punishes a person with one to five years of prison. This person can be anyone who shares or creates content which might prove to be a serious risk to “social peace or the economic order” without even defining such expressions. Therefore, the said provision appears to be a threat to the right to freedom of expression, given that authorities will be allowed to recognize users of a private messaging service application by linking a cell number to their account. The mentioned identification provisions in the bill are harsh in nature and present a blatant infringement on the rights of individuals.
Similarly, Traceability Provision (Article 10) of the bill is applicable to private messaging applications like WhatsApp to keep a check on massively forwarded messages for the purpose of any future investigation and maintain a record of the same for next 15-days, including the time when the message was received, number of receivers etc. The above scheme inevitably breaks the end to end encryption (Feature of WhatsApp) and affects the privacy not only of the original sender but also the subsequent receivers of the message. This has been done to ensure that any popular and massively forwarded message does attract as much attention and suspicion than the threshold and virality of a message does.
It is a known fact that prepaid users need to produce an identity proof to avail the subscription, but with the introduction of Article 8, in situations where the telephone number gets deregistered, telephone operators will have to assist private messaging application firms in providing information and essential details about such user in order to identify them and get their deleted social media accounts linked to the concerned mobile number.
Brazil’s international standing of its protection of users privacy in favour of a free and open internet has gained praises internationally. However, Article 36 of the bill alters the landmark Internet Civil Rights Law whereby companies are obliged to keep individual records that guarantee unequivocal identification of users for at least six months. This provision will result in the breaking of end-to-end encryption feature (a feature of WhatsApp), thereby affecting the right to privacy and anonymity. Additionally, provisions like Article 37 of the bill mandate private messaging applications and other social media platforms to provide them with remote access of the user’s database. This will easily allow a number of people to get access of user sensitive data which does not seem reasonable. Moreover, Article 12 of the Universal Declaration on Human Rights clearly states that an arbitrary interference to one’s privacy cannot be accepted since every individual has the right to protection against such interference or attacks. Therefore, the bill fails to honour many International standards of Privacy.
Idea Behind the Bill: A critical Analysis
The provisions mentioned in the bill keep a track of messages long before the crime has been committed, thereby creating the fear of being traced among the people. This results in the infringement of the rights to privacy. In addition to the same, it assigns immense authority to the government officials such that even messages circulated for noble causes can be disregarded if found being slightly against the ruling government.
Data Minimization is a tool promulgated by European Union’s General Data Protection Regulations. It mandates that the processing of data shall use as much data as it is required to accomplish a given task. Under this connotation, the companies must limit their personal data collection, storage and usage of data to the extent it is relevant, adequate, and absolutely necessary for carrying out the purpose for which data is processed. The bill fails to acquire data progressively (or in-stages), without genuinely needing it and definitely asking for more than what is required. It clearly falls short on the policy of having minimum data with maximum utilization and instead, it attempts to get access to user’s data altogether at once.
It is opined that shutting down of bad actors cannot come at the expense of silencing millions of other users, invading their privacy, or undermining their security. For instance, private messaging apps like WhatsApp have already limited the number of recipients of a single forwarded message at a time and shows users that message(s) were forwarded; viral messages are labelled with double arrows indicating they do not originate from close contact.
Human Right Council in its Report of the Special Rapporteur on the promotion and protection of the Rights to freedom of opinion and expression explicitly states encryption and anonymity enables individuals to exercise their rights to freedom of opinion and expression in the digital age and, as such, deserves strong protection.
Whenever a state enforces any law in good faith and for a legitimate purpose, there lies an obligation to identify the possible nature of the threat and the necessity and proportionality of measure that is being taken. However, the measures in the bill are far-fetched and redressed possible threats very harshly. Under Human Rights Law, the provisions in the bill violate free speech provisions blatantly.
The bill contains provisions that curb the expression of political opinions leading to political persecution. Moreover, the high fines imposed on the sponsored content mocking electoral candidates (or questioning election reliability), is a serious threat to democracy. The trustworthiness involved during elections is a crucial element of democracy. Therefore, any misinformation that tries to disrupt it should be dealt with in a proper manner. However, this provision will directly endanger the trust-worthiness and reliability of the information provided to people about the voters. Moreover, the vague criminal offences that have been set by the bill will lead to the criminalization of offences which are common parlance in daily routine and are without any malicious content.
Furthermore, a lot of unnecessary bureaucratic procedures have been introduced by the bill which will ultimately hinder companies’ operations in the country. It is true that during the times of municipal elections, curbing the spread of misinformation is paramount; however, it should be proportional to the benefits. The current Bill blatantly violates International Standards of proportionality while regulating ‘fake news’, as released by March 2017 statement by international organizations such as United Nations and the Organization of American States.
During the last decade, after an exhaustive process involving debates and information exchange, Brazil had built legislation which was both exhaustive as well as commendable. Although the Bill aims to solve certain problems for the government, prima facie, it appears that it will create deeper problems for the country. The poorly designed legislation may harm important civil liberties. Many international organizations such as Human Rights Watch have criticized the bill due to its provisions that harm basic fundamental rights. The hasty advance of the bill raises an alarming situation in Brazil. It can be said that that the government is using the law and governmental institutions to solve the political conflicts which ultimately results in the deterioration of democracy and the rule of law.In a nutshell, the country should avoid legislative makeshifts in its hard and challenging times amidst political, economic and social crisis and should look forward in solidly building advances.
Title Image Source: Bank Info Security
This article has been written by Vimlendu Agarwal who is a Third-year law student at GNLU, Gujarat.