** This post is one section of a more extensive piece on Brazil’s platform accountability and regulation debate. Click here to read the entire content.
The bill stipulates obligations to internet applications and powers to an unspecified administrative authority to oversee compliance with PL 2630’s rules. The bill's enforcement without a genuinely independent and democratic oversight structure jeopardizes its purported goals. So far, the proposal’s text fails to ensure the basis for such a structure, giving a greater margin to arbitrary enforcement of PL 2630 rather than setting the grounds for preventing such abuses. Although Legislative branch-proposed bills have limits in creating new entities within the federal administration, this is a political equation that Brazil’s Congress and federal government must sort out, in debate with civil society, before passing PL 2630.
Anatel, the Brazilian telecommunications regulatory agency, has been working to fit as the answer. The agency already exists and counts on essential attributes ensured by law, such as administrative independence, absence of hierarchical subordination, stability of its directors, and financial autonomy. Yet, its expertise and legal mandate pertain to telecommunications services and infrastructures, not to internet applications and content moderation activities. Moreover, Anatel has a bad track record in fulfilling its mandate as a telecommunications oversight agency and ensuring meaningful civil society participation in its decisions.
Coalizão Direitos na Rede emphasized a set of Anatel’s shortcomings in a public statement released earlier this year. Among them, the digital rights coalition criticizes Anatel’s favoring of large telecom operators in the auction of 5G spectrum bands. It also points out flaws regarding Anatel's oversight efficiency and transparency, based on reports from Brazil’s Federal Court of Auditors (TCU). Conversely, Coalizão Direitos na Rede advocates for a new autonomous oversight agency backed by a participative and multi-stakeholder council.
This is in line with the Special Rapporteurs for Freedom of Expression’s 2019 Joint Declaration, upholding “independent and multi-stakeholder oversight, transparency and accountability mechanisms to address private content rules that may be inconsistent with international human rights and interfere with individuals’ right to enjoy freedom of expression.”
The Special Commission on Digital Rights of the Brazilian Bar Association (OAB) has also proposed a more elaborate oversight structure. It would involve three fronts: (i) an oversight and deliberative entity formed by representatives of the government’s three branches (Legislative, Executive, Judiciary), Brazil’s competition and data protection authorities, Anatel, and OAB; (ii) a self-regulatory entity responsible for addressing specific cases of content moderation, and (iii) Brazil’s Internet Steering Committee (CGI.br), which already plays a key role issuing studies, guidelines, and recommendations for the development of the internet in Brazil. One crucial point is that any design must uphold CGI.br’s current role and nature.
Coalizão Direitos na Rede’s and OAB’s Special Commission’s proposals reflect the need for robust checks and balances, including meaningful civil society participation, in PL 2630’s oversight design. This is still missing, and filling this fundamental gap demands a committed and participative debate.
