*This is an AI-powered machine translation of the original text in Portuguese

In 2017, "fake news" was chosen as the word of the year by Collins Dictionary [1]. Of course, the status achieved by fake news in recent years was not acquired for no reason, especially when recalling the extent reached by the issue in 2016, with the election of Donald Trump in the United States. The campaign of the then President of the United States was marked by specific strategies of constructing disinformation narratives on various topics, aligned with inflammatory speeches advocating for the reduction of rights for certain minority groups.

However, it is obvious that Trump did not invent the so-called fake news. False news and related concepts have been part of social reality for quite some time. In fact, Yuval Noah Harari, a professor and distinguished Israeli author, in his work "Sapiens: A Brief History of Humankind," points out that the ability to talk about something that does not exist through the creation of fictions was one of the central points that allowed human survival, as it enabled the creation of direct and indirect relationships that allowed for the development of the human race [2].

Lies are not something new in society, and they are not limited to the political field. However, not every lie will necessarily be disinformation. It is important here to establish a crucial conceptual framework when it comes to this subject. Although the term "fake news" is the most commonly used, it is not technically accurate, as it encompasses various diverse phenomena.

To address matters in the realm of public policy and legislation, it is necessary to be careful with the concept in order to analyze the problem effectively and consequently devise solutions that are capable of preventing and/or reducing the impacts of the issue. Thus, a study conducted by Claire Wardle and Hossein Derakhshan established theoretical parameters on the subject and three central concepts [3], namely:

a) Disinformation: false information that is created to harm a person, a social group, an organization, or a country. b) Misinformation: information that is false, but was not created with the intent to cause harm. c) Malinformation: information based on reality, but used to cause harm to individuals, organizations, or countries.

Highlighting the above, misinformation—which does not yet have a specific translation in Portuguese—is false information that does not have the intention to cause harm. For example, one can mention a journalist covering a scoop and providing information "y," but after further investigation, it is discovered that the previously conveyed information was incorrect. The journalist did not intend to harm anyone; however, they ended up conveying a fact that did not find support in reality. On the other hand, malinformation—which also has no translation into Portuguese—is true information but is used to cause harm, for example, the disclosure of confidential information from companies with the intention of benefiting the competition.

Desinformation, on the other hand, differs from the other two concepts, as it involves the creation/spread of false news with the intent to target someone or some group. Disinformation reflects a perspective in which someone interested will direct economic, financial, and political efforts to create and spread false facts in order to cause negative impacts on third parties, which can be individuals or organizations. Currently, an addition can be made to include distortion or decontextualization of true information disseminated in a misleading manner in the concept of disinformation.

Therefore, in the first instance, the regulatory discussion should focus on ways to combat disinformation. In this sense, the internet is a vast field for disinformation due to the speed of information dissemination, the low barrier to information entry, the ease of using anonymity, and the ways of financing content [4].

Beyond Trump, within the electoral aspect, disinformative conduct was observed in several countries, including Brazil. Due to behaviors that could characterize abuse of economic power by hiring the dissemination of fake news via WhatsApp in the general elections of 2018, the Superior Electoral Court (TSE) judged two Actions for Electoral Investigations (Aijes) against the elected president's campaign. These actions, although judged as unfounded in February 2021 [5], indicate that the topic is central in the country today.

Seeking to establish ways to reduce the impact of disinformation, political actors began to discuss ways to regulate the subject, a stance that gained momentum with the approval by the Brazilian Federal Senate of PL 2630/2020 authored by Senator Alessandro Vieira.

Currently, the Chamber of Deputies has set up a specific working group (WG) to study and draft an opinion on the aforementioned bill, coordinated by Representative Bruna Furlan and with Representative Orlando Silva as the rapporteur. The WG is in the process of holding public hearings to gather information and opinions from experts.

PL 2630/2020 consists of 36 articles and seven chapters and aims to establish the "Brazilian Law on Freedom, Responsibility, and Transparency on the Internet." In general, the bill intends to establish a regime of accountability for platforms, which are divided by the bill into social networks and private messaging services.

PL 2630/2020 applies to social network platforms and private messaging services that have more than two million registered users in Brazil. Among the nine principles present in the bill, the respect for the user in their free formation of political preferences and personal worldview, and the shared responsibility for preserving a free, plural, diverse, and democratic public sphere, stand out.

Regarding the objectives, one can highlight one that seems to encapsulate the intention of the bill, namely, 1) strengthening the democratic process by combating inauthentic behavior and artificial content distribution networks, and 2) promoting access to a diversity of information on the internet in Brazil.

Article 6 of the bill establishes that social network providers and private messaging services must take measures to prohibit the operation of inauthentic accounts, prohibit unidentified automated accounts, and identify all promoted and advertising content for which distribution was paid.

The bill provides for one of its most controversial provisions, stating that social networks and messaging services may request the presentation of the user's identification document when there is a complaint that violates the law, indications of inauthentic accounts, or a court order.

Specifically for private messaging services, the bill mandates the creation of four basic policies: 1) maintain the interpersonal nature of the service, 2) limit the number of forwards of the same message and the maximum number of members per group, 3) establish mechanisms to ascertain the user's prior consent to inclusion in groups and related matters, and 4) disable, by default, the acceptance for inclusion in groups and similar. The bill classifies mass forwarding as sending the same message by more than five users within a 15-day interval to groups and the like.

Regarding content moderation, another controversial topic in the bill, Article 12 stipulates that in cases of immediate or difficult-to-repair damage, information or user security violations, violations of rights of children and adolescents, occurrence of crimes typified in Law No. 7,716/1989 (which defines crimes resulting from racial or color prejudice), or severe compromise of application usability, integrity, or stability, providers may remove the content without notifying the user. In other cases, providers must notify the user about the rationale, analysis process, and application of the measure, and in all cases, they must ensure the user's ability to appeal the unavailability of content and accounts.

The bill establishes a specific requirement for social networks to submit quarterly transparency reports that must contain various information, including the total number of moderation measures for accounts and content and the measures taken, and the total number of identified automated accounts.

Furthermore, social networks are also obliged to identify all promoted and advertising content, indicating the account responsible for the promotion/advertisement and allowing the user to access contact information for that account. In fact, social networks can request advertisers to confirm their identification.

The bill also includes an interesting chapter on government action, in which it establishes that the accounts of government entities and agencies and of political agents whose competence comes from the Constitution (for example, holders of elective offices) are of public interest, therefore, they cannot restrict other accounts' access to their publications.

Moreover, the Public Administration would be obligated to expose information and expenses related to the promotion or advertisement of content on the respective transparency portal, providing information such as the contract value, criteria for defining the target audience, and the list of applications in which the content was linked.

To monitor the application of the legislation, the bill creates the Council for Internet Transparency and Responsibility, which will be linked to the National Congress and has as its central attribute the conduct of studies, opinions, and recommendations on freedom, responsibility, and transparency on the internet. The council will be composed of 21 councilors with two-year terms, allowing for reappointment. Among the composition, there are two seats reserved for the police, one for the National Council of Police Chiefs and one for the representative of the Federal Police Department.

Another interesting point of the bill is the provision for regulated self-regulation in Article 30, which allows social networks and messaging services to create an institution to assist in compliance with the law, with the duties of establishing and managing a digital platform focused on transparency and responsibility in internet use and providing a service for handling and forwarding complaints, among others.

The bill establishes two specific sanctions for non-compliance with the law: a warning with an indication of a deadline for corrective measures and a fine of up to 10% of the economic group's revenue in Brazil in its last fiscal year. Both aforementioned sanctions can be applied without prejudice to other civil, criminal, or administrative penalties that may subsist, and the amount collected must be allocated to the Maintenance and Development Fund for Basic Education and Valorization of Education Professionals (Fundeb) to be used in digital education and literacy initiatives.

In the final provisions, the bill also defines that social networks and private messaging services must have headquarters and appoint legal representatives in Brazil to comply with Brazilian judicial orders.

Considering the presented panorama that encompasses the main points of PL 2630/2020, it is possible to perceive that, despite the bill circulating in the media as a means to combat fake news, its intention is to establish a regime of accountability for platforms, as even stated in the very definition of the bill's scope as the Brazilian Law on Freedom, Responsibility, and Transparency on the Internet. So much so that we only have explicit mention of the word "disinformation" in two instances related to the council's attributions.

However, it should not be forgotten that fostering and establishing criteria of responsibility and transparency on the web can be one of the ways to combat disinformation. The question that arises is to analyze whether the provisions of PL 2630/2020 can achieve this goal without violating the user's freedom of expression, a fundamental right in the national legal system and a central principle for internet governance.

[1] Available at: https://www.bbc.com/portuguese/internacional-41843695. Accessed in: August 2021.

[2] As the Israeli author says, "our language evolved as a form of gossip. According to this theory, Homo sapiens is first and foremost a social animal (...) The gossip theory may sound like a joke, but several studies corroborate it. Even today, most human communication—be it in the form of emails, phone calls, or columns in newspapers—is gossip. It is so natural to us that it's as if our language evolved exactly for this purpose (...) But the truly unique feature of our language is not its ability to transmit information about men and lions. It's the ability to transmit information about things that don't exist." In: Sapiens: A Brief History of Humankind. Translation: Janaína Marcoantonio. 26th ed. Porto Alegre, RS: L&PM, 2017. p.32.

[3] Available at: WARDLE, Claire; DERAKHSHAN, Hossein. Information Disorder: Toward an interdisciplinar framework for research and policy making. Council of Europe, 2017; Available at: https://rm.coe.int/information-disordertoward-an-interdisciplinary-framework-for-researc/168076277c. Accessed in: August 2021.

[4] GROSS, Clarissa Piterman. Fake news and democracy: discussing the normative status of falsehood and freedom of expression. In: Fake News: The Connection Between Disinformation and the Law. Diogo Rais (coord.). 2nd ed. São Paulo: Thomson Reuters Brasil, 2020.

[5] Available at: https://www.tse.jus.br/imprensa/noticias-tse/2021/Fevereiro/tse-julga-improcedentes-duas-acoes-contra-bolsonaro-por-suposto-disparo-em-massa-de-mensagens-pelo-whatsapp-nas-eleicoes-de-2018. Accessed in: July 2021.

*Co-authored with Jéssica Guedes Santos. Originally published on Conjur.

**Image freepik.