Fake news crackdown opens dangerous precedent for censorship

</p> <p>In his decision, Justice Moraes argued that suspending these social media accounts was &#8220;necessary for the interruption of hate speech, subversion, and encouragement to break the institutional and democratic normality.&#8221;&nbsp;</p> <p>Researchers consulted by <strong>The Brazilian Report</strong> warned that Justice Moraes&#8217; latest decision sets a dangerous precedent that would allow punishment related to illicit content before it is even posted, in a form of prior censorship.</p> <p>&#8220;The precedent is an order of prior restraint in the sense that you are suspending accounts not as punishment, not as a reparation measure, but as a measure for the future, that is, before someone posts content that you might <a href="https://brazilian.report/power/2020/06/22/fake-news-bill-treats-all-brazilian-netizens-as-potential-criminals/">consider to be illicit</a>,&#8221; explains Francisco Brito Cruz, director at Internet LabBr. As an example, Mr. Cruz creates a hypothetical situation by which a politician resorts to a trial court to suspend a political adversary on social media for illicit actions, the judge in charge may now grant him this right, using Justice Moraes&#8217; decision as precedent.&nbsp;</p> <p>Taking down social media accounts is an extreme measure, argues Priscilla Silva, Law and New Technologies researcher at ITS Rio. She explains that, in the case of a crime, the normal procedure would be the <a href="https://www.uol.com.br/tilt/noticias/redacao/2020/07/17/pl-das-fake-news-debate-aborda-detalhamento-excessivo-para-remover-posts.htm">removal of a specific post</a>. In order to justify the decision to suspend an account, the courts would have to prove there is an ongoing crime.&nbsp;</p> <p>The researchers conclude that Friday&#8217;s decision breaks a cycle of positive precedents in relation to <a href="https://brazilian.report/power/2020/06/30/good-brazil-biggest-newspaper-pro-democracy-stand/">freedom of expression</a> in Brazil&#8217;s highest court.&nbsp;</p> <h2>Fake new debate: content v. behavior</h2> <p>The problem lies in the idea of purely regulating content, rather than combatting specific damaging behaviors, said Mr. Cruz.&nbsp;</p> <p>When there is a clear definition of the crime committed — for example, racist abuse — the content is punishable. But when it comes to fake news and disinformation, the boundaries are less clear and much more subjective, he explains.</p> <p>Priscilla Silva, Law and New Technologies Researcher at ITS Rio, argued that, while such decisions have legal grounds, Justice Moraes&#8217; specific order on Friday failed to present a justification that elucidates the actual crimes committed.&nbsp;</p> <p>&#8220;It does not tell us exactly which crimes these people committed on the internet,&#8221; says Ms. Silva. &#8220;It talks about hate crimes, but what is the legal article behind that?&#8221;&nbsp;</p> <iframe src="https://open.spotify.com/embed-podcast/episode/0R8BLk5ncZvZ3rJh5nhESe" width="100%" height="232" frameborder="0" allowtransparency="true" allow="encrypted-media"></iframe> <hr class="wp-block-separator"/> <h2>Political use of social media controls&nbsp;</h2> <p>Mr. Cruz argues that the political co-optation of social media control tools — such as suspending accounts — is already underway. This is aggravated by the fact that, in Brazil, access to the justice system is also unequal. &#8220;We know that certain sectors of the population, certain niches, have greater access to the Judiciary,&#8221; he said.</p> <p>And Justice Moraes is not exactly a neutral umpire in this case. Fact-checking agency Aos Fatos showed that he is the target of choice of the far-right&#8217;s vitriol online, with 71 percent of negative posts about the Supreme Court mentioning him personally. At President Jair Bolsonaro&#8217;s orders, the Solicitor General&#8217;s Office filed a lawsuit to overturn the decision.</p> <p>Ms. Silva explained the fake news inquiry has put the Supreme Court into a novel situation, where it is, at once, the victim, the accuser, and the judging body. &#8220;It is extremely problematic,&#8221; she says.