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Provisional Measure modifies Marco Civil da Internet and changes rules for social networks
Last Monday, September 6, 2021, President Jair Bolsonaro published Provisional Measure No. 1,068, which amends Law No. 12,965/2014, the Marco Civil da Internet, and Law No. 9,610/1998, the Copyright Law.
The intent of the Measure is to adapt these laws in order to regulate the use of social networks. Below is a brief summary of the issue:
What companies are subject to Provisional Measure No. 1.068 apply?
To social networks. The PM defines social networks as: an Internet application which main purpose is the sharing and dissemination, by users, of opinions and information, conveyed by texts or image, sound or audiovisual files, on a single platform, through accounts connected or accessible in an articulated manner, allowing the connection between users, and that is provided by a legal entity that exercises economic activity in an organized manner, by offering services to the Brazilian public with at least ten million registered users in the country.
What will be regulated?
The PM regulates “content moderation”, which it defines as the exclusion, suspension or blocking of user-generated content and/or the cancellation or suspension, in whole or in part, of user accounts/profiles.
Does the PM apply to foreign companies?
Yes, if they are a social network and offer services to the Brazilian public or if they have at least one legal entity of their economic group established in Brazil.
What changes are there in content moderation?
The PM introduces new rights for social network users that may only have their profiles or content deleted, cancelled or suspended with a “just cause”. The law foresees exactly what can constitute just cause, such as
- Default by the user;
- Accounts managed by any computer program or technology to simulate human activities (popularly known as “bots”), or content that contains nudity or explicit or implicit representations of sexual acts, incitement of crimes against life, pedophilia, terrorism, trafficking, incitement of acts of threat or violence, including for reasons of discrimination or prejudice of race, color, sex, ethnicity, religion or sexual orientation;
- Compliance with court orders;
- When the disclosure characterizes: practice, support, promotion or incitement of crimes against life, pedophilia, terrorism, traffic or any other criminal infractions subject to unconditioned public criminal action (in other words, crimes that do not depend on the victim’s own representation. All other crimes, such as defamation, slander or other crimes against honor, for example, will not constitute just cause.
What happens in case of violation of the PM?
In cases of non-compliance with the users’ rights, the social network in question will be subject to a warning, with an indication of the deadline for the adoption of corrective measures, a fine of up to ten percent of the economic group’s revenue in Brazil in its last fiscal year, a daily fine, temporary suspension, or prohibition of the exercise of the activities of collection, storage, and processing of records, personal data, or communications by Internet connection and application providers in the national territory.
When does the PM take effect?
The PM determines that social network providers will have thirty days to adapt their policies and terms of use to the provisions of the legislation.
Has the PM been confirmed by Congress?
No, although the PM is in effect, it still needs to be confirmed by Congress to become a law in Brazil. Congress has 60 days (extendable for an equal period of time) to confirm or veto this legislation. After this period, the PM loses its effects. There is considerable mobilization in Congress today against this PM and a 6 legal actions questioning the constitutionality of this law have been filed before the Supreme Court.
