Update: The Brazilian Senate passed the law on August 10th. EFF and our allies’ push to protect whistleblowers revealing crimes or the violation of human rights was successful. The espionage criminal offense explicitly exempts such cases. Unfortunately, the “mass misleading communication” offense remained in the final text. According to the language approved, promoting or financing campaign or initiative to disseminate “facts [the person] know is untrue” capable of undermining “the health of the electoral process,” using "means not provided by the private messaging application," could lead to up to five years’ jail time. Also thanks to civil society’s push, none of the criminal offenses introduced by the new law apply to journalistic activity or to expression criticizing constitutional powers or reclaiming rights and constitutional safeguards.

The Brazilian Chamber of Deputies is on track to approve  a law that threatens freedom of expression and the right to assemble and protest, with the stated aim of defending the democratic constitutional state. Bill 6764/02 repeals the Brazilian National Security Law (Lei de Segurança Nacional), one of the ominous legacies of the country’s dictatorship that lasted until 1985. Although there’s a broad consensus over the harm the National Security Law represents, Brazilian civil groups have been stressing that replacing it with a new act without careful discussion on its grounds, principles, and specific rules risks rebuilding a framework serving more to repressive than to democratic ends.

The Brazilian National Security Law has a track record of abuses in persecuting and silencing dissent, with vague criminal offenses and provisions targeting speech. After a relatively dormant period, it gained new prominence during President Bolsonaro’s administration. It has served as a legal basis for accusations against opposition leaders, critics, journalists, and even a congressman aligned to Bolsonaro in the country’s current turbulent political landscape.

However, its proposed replacement, Bill 6764/02, raises various concerns, some particularly unsettling for digital rights. Even with alternative drafts trying to untangle them, problems remain.

First, the espionage offense in the bill defines the handover of secret documents to foreign governments as a crime. It's crucial that this and related offenses do not apply to acts in a way that would raise serious human rights concerns: whistleblowers revealing facts or acts that could imply the violation of human rights, crimes committed by government officials, and other serious wrongdoings affecting public administration; or,  journalistic and investigative reporting, and the work of civil groups and activists, that bring to light governments’ unlawful practices and abuses. These acts should be clearly exempted from the offense. Amendments under discussion seek to address these concerns, but there’s no assurance they will prevail in the final text if this new law is approved.

The IACHR’s Freedom of Expression Rapporteur highlighted how often governments in Latin America classify information under national security reasons without proper assessment and substantiation. The report provides a number of examples in the region on the hurdles this represents to accessing information related to human rights violations and government surveillance. The IACHR Rapporteur stresses the key role of investigative journalists, the protection of their sources, and the need to grant legal backing against reprisal to whistleblowers who expose human rights violations and other wrongdoings. This aligns with the UN Freedom of Expression Rapporteur’s previous recommendations and reinforces the close relationship between democracy and strong safeguards for those who take a stand of unveiling sensitive public interest information. As the UN High Commissioner for Human Rights has already pointed out:

The right to privacy, the right to access to information and freedom of expression are closely linked. The public has the democratic right to take part in the public affairs and this right cannot be effectively exercised by solely relying on authorized information.

Second, the proposal also aims to tackle "fake news" by making “mass misleading communication” a crime against democratic institutions. Although the bill should be strictly tailored to counter exceptionally serious threats, bringing disinformation into its scope, on the contrary, potentially targets millions of Internet users. Disseminating “facts the person know is untrue” that could put at risk “the health of the electoral process” or “the free exercise of constitutional powers,” using "means not provided by the private messaging application," could lead to up to five years’ jail time.

We agree with the digital rights groups on the ground which have stressed the provision’s harmful implications to users’ freedom of expression.  Criminalizing the spread of disinformation is full of traps. It criminalizes speech by relying on vague terms (as in this bill) easily twisted to stifle critical voices and those challenging entrenched political power. Repeatedly, joint declarations of the Freedom of Expression Rapporteurs urged States not to take that road.

Moreover, the provision applies when such messages were distributed using "means not provided by the application." Presuming that the use of such means is inherently malicious poses a major threat to interoperability. The technical ability to plug one product or service into another product or service, even when one service provider hasn’t authorized that use, has been a key driver to competition and innovation. And dominant companies repeatedly abuse legal protections to ward off and try to punish competitors. 

This is not to say we do not care about the malicious spread of disinformation at scale. But it should not be part of this bill, given its specific scope, neither be addressed without careful attention to unintended consequences. There’s an ongoing debate, and other avenues to pursue that are aligned with fundamental rights and rely on joint efforts from the public and private sectors.

Political pressure has hastened the bill's vote. Bill 6764/02 may pass in a few days in the Chamber of Deputies, pending the Senate's approval. We join the call of civil and digital rights groups that a rushed approach actually creates greater risks for what the bill is supposed to protect. These and other troubling provisions put freedom of expression on the spot, serving also to spur government’s surveillance and repressive actions. These risks are what the defense of democracy should fend off, not reiterate.