This Wednesday (August 9), the Federal Council of the Brazilian Bar Association issued an opinion to Senate President Rodrigo Pacheco on the unconstitutionality of Provisional Measure 1,068/2021.
Melbo Gate
OAB Melpomen says it will be difficult for MPs to control and exclude fake news
MPs amended(Marco Civil da Internet) to, among other things, restrict spontaneous and extrajudicial actions (i.e. without a court order) by social network providers to delete or make content unavailable and suspend user accounts , whether due to a breach of law or a breach of a contract governing the personal relationship with its users.
MP Articles 8-B and 8-C establish an exhaustive list of assumptions that will describe the legitimate reasons for a platform to act on its own initiative, allowing for the suspension of accounts, profiles or content without judicial intervention.
In this light, the OAB considers that the purpose of this measure Chinese Overseas America Number Data is to prevent social media providers from acting voluntarily to combat truly abusive and unlawful demonstrations against democratic order, electoral processes or public health that are sympathetic to popular preferences. current government.
According to the opinion, the first flaw of the MP is the lack of editorial requirements. The President of the Republic may promulgate provisional measures only in relevant and urgent circumstances and must immediately submit them to Congress.
“The absence of any of the requirements enumerated in Article 62 of the Federal Constitution renders the provisional measures unconstitutional and an instrument of power aimed at satisfying the wishes of the executive branch, thereby violating the guiding principles of any democratic state governed by the rule of law”, highlighted the OAB.
For the OAB, the administration has provided no objective data to draw any conclusions about the urgency of changing the Internet governance topic that is hotly debated in society. The Opinion noted that the MPs also failed to describe what critical circumstances would warrant such an immediate, extraordinary and serious intervention in the area of individual rights.
Therefore, the order asserts that the provisional measure, besides being based on incorrect and/or erroneous premises, does not demonstrate the existence of requirements of relevance and urgency that would allow the President to make an exceptional exercise of legislative authority, and therefore it is formally unconstitutional.
OAB
Any regulatory measures aimed at disrupting business models must respect free enterprise and free competition. According to the Opinion, the Internet Law considers free enterprise as one of the foundations of discipline for Internet use, so that providers can establish clear policies on the conditions of use of their services and establish reporting mechanisms and the evaluation of content generated within the platform.
The opinion held that the provisional measures interfered with private economic activity, the right to free enterprise, and the construction and management of the social network provider's business model by prohibiting the social network provider from implementing its usage policies. Such state intervention, without the slightest rationale, is unconstitutional.
“Specifically, the provisional measures, which limit the Platform’s actions to the presumptions listed in Articles 8-B and 8-C that are considered legitimate reasons, interfere with freedom of contract in an absolutely unreasonable and disproportionate manner, This is a corollary of liberal initiatives, platforms and their users," he added.
Furthermore, for the order, provisional measures limit the moderation of hate speech by limiting the possibility of moderating it in cases of violence or threats, or when it constitutes an offense subject to unconditional criminal prosecution, thereby preventing social networks from playing a role in prevention and prevention Action on hate speech. Suppress acts of prejudice or discrimination.