Lawfare Daily: Sanctions, Speech, and Sovereignty in Brazil

[Intro]

Laís Martins: In Brazil, the idea that freedom of expression is not an absolute right is more pacified than in the U.S., I would say. So Brazilians in general tend to understand a court decision that blocks a service that is widely used because it is being taken to protect other fundamental rights.

Renee DiResta: It's the Lawfare Podcast. I'm Renee DiResta, contributing editor of Lawfare. I'm joined by Joan Barata, visiting professor at the Catholic University of Porto, Laís Martins, journalist at The Intercept Brazil and fellow at Tech Policy Press, and James Görgen, advisor to the Ministry of Development, Industry, Trade, and Services in Brazil.

Joan Barata: I mean, if you question the, the fake news bill, then it seems that you're either defending Bolsonaro or the big tech. Whereas if you are on the left side, you are supposed to be in favor of, of the bill. And I think that in, in terms of civil society and discussions, this has been a little bit, a little bit problematic in the country.

Renee DiResta: Bolsonaro is on trial, a Brazilian Supreme Court justice is under U.S. sanctions, tech laws are shifting fast and Trump is imposing tariffs. We're going to unpack what exactly is going on and talk about how Brazil became the frontline in the global fight over speech, sovereignty, and Silicon Valley.

[Main Podcast]

 As we record this, Brazil has just entered the verdict and sentencing phase of former President Jair Bolsonaro’s trial for his role in the January 8^th––well, we would call it maybe an insurrection here in the U.S. Brazil's January 6th moment. And that trial is colliding with an extraordinary series of developments here in the U.S. So, Laís, since you are the journalist on the panel, I wanted to start right in with the news. What is happening in court and why is this trial so significant for Brazilian democracy?

Laís Martins: This is a historic trial. This is the first time a sitting president or any president in Brazil is taken to court at the Supreme Court of Justice. Let's remember, Brazil faced a very violent and horrible military dictatorship and the people responsible for that period in time were never taken to court, were never really held accountable. So it's very telling that now Bolsonaro is the first president to be taken to the Supreme Court. So Bolsonaro and a bunch of his close allies, including three former ministers, are being taken to court and they're being judged for five crimes, but mostly a coup d’etat attempt, an attempt to violently abolish the democratic rule of law and some other crimes that are connected.

This is, of course, very much connected to January 8^th, the events we had in Brasília that were quite similar to what January 6th was in Washington, D.C., but I would say even worse because it wasn't only the Capitol or the Congress that was attacked, but the three houses of power. So the executive branch, the Supreme Court, and also Congress.

So this is connected to those events, but also to the lead-up. And I think the case being made at the Supreme Court right now is very strong in showing that these were a succession of events that led to that day. So, while the Bolsonaro defense tries to play it out as something isolated, something that happened because these people decided to show up, the Supreme Court and the justices in charge of the case are showing that no, actually, this was a succession of events.

So today as we speak the defense attorneys are presenting their defense arguments. And in the afternoon we're said to have the justices casting their votes. Of course, this starts with Minister or Justice Alexandre de Moraes, who is a very important figure. We can talk about him later, but the idea is that the justices will start to vote and by next week we will have a decision on whether they will be held accountable for their crimes or not.

It's important to say that it's still unclear whether Bolsonaro will actually be arrested for his crimes if he's found guilty because he could eventually be put under house arrest, which he already is. But the way that the, the trial is heading, the path it's heading down is probably showing that they will be found guilty of trying to abolish the democratic rule of law and the democratic state in Brazil.

Renee DiResta: So one, one quick clarification. So, Moraes, I think, also figured in the accusations also. There was something about an assassination attempt. Was that––that was also part of the accusations against Bolsonaro. So he, he also sort of plays a role in this as a, as a figure in the accusations too. Is that––that's accurate?

Laís Martins: Yeah, that's accurate. And that's part of the mix-up. You know, Moraes shows up in the case both as the accuser, a potential victim of this plot––so the plot was to assassinate Lula, the current president; Geraldo Alckmin, who is the vice president; and Justice Moraes. So at the same time, he's the victim, the accuser, and now voting.

So this kind of explains a bit of the tension, but I think that analysis is a bit superficial when we just look, you know, from, from the start. We really need to dive deeper to understand why this mix-up happens.

Renee DiResta: So since this was partially plotted on social media, tech policy and content moderation got very much caught up in it. There was some action between Brazil and X, I guess that would've been a little over a year ago. 

I guess maybe to understand why this trial is linked so much to tech policy and to help sort of a majority non-Brazilian audience understand Brazil's internet laws, maybe Joan, you can explain to us the Marco Civil da Internet. I, I’m sure I just butchered the pronunciation there, I'm sorry. But Brazil's Internet Bill of Rights and how its Article 19 sort of shields platforms in ways similar to, to the United States CDA Section 230, maybe.

Joan Barata: Sure. No, the first thing, I mean, I think that we need to say is that Marco Civil was adopted more or less a decade ago, and was considered to be, was seen as a, as a very good law, a good example of a good law aligned with international human rights standards when it comes to the protection of the right to freedom of expression online.

So it was seen not only as a good example for the region of the Americas, but also as a, as a group––a good global example that goes beyond, let's say, the north. You know, in the north, of course, we already had the e-Commerce Directive in Europe, Section 230 in the United States, but then Brazil represented a, a, a good example, not only in terms of content, but also when it comes to the elaboration of the law.

When, when the law was prepared, was discussed, it was preceded by very intense discussions between civil society experts, et cetera. So in this, in this sense, Marco Civil was considered to be a very, very good example for, for, for many reasons. And it's true that Article 19 of Marco Civil has been one of the, the, the most relevant provisions in that, in that law because it establishes a certain type of liability exemptions. It says that platforms should not take down content unless there's a court––you can go with a court order that declares that the, the, the content in question is, is illegal.

So if, in other words, if there's just a private individual or a government agency or someone trying to, to, to take down, to take down content in principle, in principle, unless there's a clear court order based on a, let's say, a due process, let's say, you cannot take down, you cannot take down content. This goes beyond, for example, what is the regulation in Europe, because in some cases individuals in Europe, under the e-Commerce Directive and now with the DSA, can go before a platform and use a mechanism called notice and action and notice and takedown.

That was not the case in, in Brazil. And this is, this at some point triggered doubts in terms of constitutionality because it said that, I mean, some people said, some organizations said that this kind of provisions would represent a lower level of protection, particularly for consumers, no? And when trying to address any issue when it comes to content posted on the platform.

So that was the beginning in a way, the trial that started a few years ago, before the pandemic, a discussion about the constitutionality of Article 19 that took place in parallel to a discussion in the Congress about the adoption of a law or new legal provisions that would replace, I mean, what was until that point, the Marco Civil.

Renee DiResta: And so there were notice and takedown provisions for things like non-consensual intimate imagery, right? There were certain carveouts, but then what was found unconstitutional, or this was more broadly found unconstitutional, which then opened the door for much more, as I understand it recently, much more broader notice and takedown provisions. Can you describe maybe a little bit what the new regime, if you will, is?

Joan Barata: Exactly, no, this is a regime that also, this is, I mean, a specific characteristic of the Brazilian legal system where judicial decisions can incorporate, let's say extensive reinterpretations and re-elaborations of legal provisions.

No, I mean, so, so the, the, the, the law, the, the courts can play a very, very active role in this sense. Now what, what the court, I mean, after long discussions, different hearings. I mean, also it's very interesting to note, I mean, that, that, that in Brazil deliberations of the court are public. So I mean, it's, it's an opportunity for, for everyone also to understand the different positions of the different, of the different judges, no?

And the question here is that in order to achieve balance the, the, the president of the court in this, in this case, made a proposal saying, let's not completely eliminate the liability exemptions of Article 19, but on the one hand, let's keep the carveouts and even broaden up the carveouts when it comes to clearly illegal content, something that platforms need to detect by themselves as a legal obligation.

And also when it comes to other illegalities, I mean, it should be enough with a notice coming from, from the user. There's no need to use a code decision every time, but the court still says that in cases where it is very difficult to give platforms the responsibility to make legal determination such as defamation having still, I mean, having a court decision is still, is still necessary.

So it's some sort of a compromise between the different positions of the, the different members of the court. Some of them were more protective or were more in favor of keeping liability exemptions. Others were wanted to impose total liability.

And so the compromise, the final compromise is probably something that doesn't please anyone at this point. And now we need to see if the Congress, based on this decision of the Supreme Court, takes it from there and also adopts and introduce further let's say reforms in the, in the, in the legal system when it comes to platform regulation.

Renee DiResta: And James, I want to bring you into this also. So you've argued in the past that, that, or written about, I should say, perhaps that Article 19’s liability shield provided opportunities for certain types of online harms to flourish, I think. I'd like to hear more about how you see the, the differentiation. I think there's a little bit of space between the two of you on, you know, disagreement around how to, how to balance freedom of expression with the sorts of harms that it seems that the court and the, the rethinking of the law are trying to address here.

James Görgen: I think I have a different view of the professor about this story, because the Marco Civil came after the Snowden revelations in Brazil, when the surveillance of the president of the Republic, also the oil company, the, our biggest oil company in Brazil, Petrobras, were surveilled by, by the NSA and other intelligence agencies, with participation of the big techs. But even in this case, unfortunately, our law passed with this copy of the Section 230 for the DCA, you know.

And unfortunately later I said, because we guarantee with this after the exceptions for after the decision, we guarantee for the big tech, the, the field to advance in monopoly and other things related to the business model of these companies. We know, and you know better than me, what it represents. Yeah. We have the judgment of the Google search case now, about Chrome and all other things. And the civil society has a participation on this, supporting this vision from the, the DCA, supporting this vision from the big techs.

And unfortunately, the government, that moment I was the executive secretary of the Ministry of Communication, that moment. For us, it was very difficult to defend for the, the president, Dilma Roussef, these ideas about––we have a different constitution of the United States. We don't have a First Amendment. We have more than three articles related to free of speech and expression liberty.

And because that, free of speech in Brazil, as Germany and as Europe in general, is not in the same level over on other rights, is not of absolute value over the, the other rights, fundamental rights, because that––we think the put some weight when we judge something related to this. And because this, the Supreme Court entering the discussion from some years ago, and putting this new vision, or new view, preventing the honor crimes is totally protected by the, the Article 19, but create some exemptions to go for the notes and takedown solution, let's say in this way.

And when, meanwhile, we don't have a legislation now. Because that, I think, is a very good solution for now. We have elections next year and the misinformation, fake news and everything related to this is a weapon of the far right in Brazil––I don’t know, since 2013 or increasing in 2018. But we, we need to enter in the electoral process with some safeguards, I would say. And because that, I think we have a good solution from the Supreme Court to put like a––I don’t know the expression, but to put some bridge to, to pass to avoid some problems during our elections.

Renee DiResta: So this is the sovereignty, we describe it as the sort of speech-versus-sovereignty argument here in the, in the U.S., the debate about how to, how to think through––we're seeing it play out in Europe, actually, we were going to have a hearing in the U.S. Congress here a little bit later this afternoon about the European Digital Services Act. So this, this is a kind of an international conversation now. There's also, I think, a fake news bill specifically, if I'm not mistaken. And there's an AI proposal, there's a child safety proposal, so there's a lot of these different proposals that are coming out. How do they intersect with the Article 19 decision?

James Görgen: Yeah, I think now we approved the, more or less the, our Kids Online Safety Act, last week, no? Laís, I think yes. And now the president will sanction or not, but will sanction in this case.

And also we have this draft bill about fake news unfortunately put aside, and also now we have some draft bills formulated by the government to be sent to the Congress: one related to consumer protection in terms of digital services, and another one about competition. Different ministries are working on, on that.

And now we have all these things in place––also the draft bill for AI, and we have some rights protection discussion related, I think for the two, the DSA and DMA, you know, compare it with the European legislation. We have this for our consumer protection and competition defense laws or draft bills. And also in the AI legislation, the law or the draft bill also, we have this discussion about how we can scrutinize the algorithms and how we can moderate or remove from the internet some contents or harmful contents, and I think we have this very present discussion.

But to me the discussion is not only about this. We need to put with regulation, we need to put industrial policy together. We need to develop some digital national ecosystem, working in terms of platforms. We need some rules, let's say this way, for the companies, the American companies and even the Chinese companies. They, they are entering in Brazil in very speed way and we need some, put something more or less like what, what Europe is doing, no?

We need to discuss the industrial policy, but also the regulations. And I think we need go, we need to trespass this discussion only about fake news and about misinformation. I think that we need to question the business model of this enterprise. This is behind all the problems we have experiencing since, I don't know, 2018, at least in Brazil.

And we need to scrutinize this. We need to debate this, and this is not an issue well-debated in Brazil. We need to maybe improve this because we have a lot of discussions related to data centers, digital infrastructure and all these things. And this some silence is over this. We have some vetos to discuss sometimes, and issues.

Then I think we need to advance. Even Lula is sending the, the draft bills to the Congress, I think, in some weeks, but to have the, the problems with the sanctions, the Trump sanctions also, and this is create some fear of, or concerns about, how we can send this to the Congress, because it's not easy topic even in Brazil, but now globally.

And we need to discuss how we can send this without being attacked from this discourse about censorship, freedom of speech, because it's always the same debate. Any kind of regulation in Brazil is treated as some control or regulation to censor internet. To me, this is a fallacy, a fallacy problem. We need to combat this working and debate this publicly.

Renee DiResta: I want to, I want to get to that. And let me lay out a couple more things for audiences who are not yet familiar––for listeners who are not immersed in that. Because I think unless you follow the dynamics of both the sort of, you know––Joan and I have been on podcasts discussing the transnational far right narratives about the DSA.

So I do want to, I do want to get to that. Laís, I'm curious, really quickly––maybe you can tell us, as a journalist, both how platforms have responded to this, but also I'm very curious where the Brazilian public is on this, if there's been polling. This is one of the things that we're very curious about as we read. Much of the American media coverage of this focuses on it in the context of the relationship between Trump and Bolsonaro, or the tariffs, or the way in which it affects American audiences.

I'm curious to hear if you can maybe speak to this––where the Brazilian public is on it.

Laís Martins: You mean in regards to tariffs?

Renee DiResta: No, no, no. Even just the American tech companies, the responses to the American tech companies. You periodically see, I remember when X had that fight with Brazil and was temporarily shut down for a few days. I remember some of the Brazilian users popping over to Bluesky, showing up on, you know, a variety of different platforms, looking for different places again, to continue participating in the, in the public square, if you will. I hate that metaphor, but it is what it is. That question of how the people who are indirectly impacted by the geopolitical dynamics, by the––by what––by platform machinations, by a lot of the different dynamics––where, where is the Brazilian public on a lot of this stuff?

Laís Martins: I think this has evolved over time. Renee, back when Twitter was blocked, it seems like so long ago, but it, it's not that long, but so much has changed on this landscape. I think there was some concern that this was the Supreme Court overstepping the line, but connecting to what James said in Brazil, the idea that freedom of expression is not an absolute right is more pacified than in the U.S., I would say.

So Brazilians in general tend to understand a court decision that blocks a service that is widely used because it is being taken to protect other fundamental rights, or, for example, democracy, right? That's a bit of the context on the Twitter, the X ban. And again, Telegram, same thing. And now when we arrive to the ongoing battle between the Supreme Court and the big tech companies.

This is a really interesting moment in Brazil, I have to say. The tariffs have just boosted this sentiment of, we’re proud to be Brazilians. We're a sovereign nation. No one is going to tell us how we do our jobs, what services we should be using, what are the laws here. So there is lots of public support for the decisions, and I think it has become a really interesting moment because it has sparked this discussion that is very hard to put on the agenda, about, we need to develop our own tech sector. We need to develop our own digital ecosystem.

And we have a really good example of how that works out, because we have PIX, which is an instant payment system, kind of like Venmo works in the U.S., but it's public. It was developed by the Central Bank of Brazil. And it's a wonderful service. It works wonderfully. It's free, it's very fast, and it has drawn the ire of credit card companies because they're losing market share because of PIX, right? So, they came to Brazil and they sat down on the negotiation table with the tariff negotiation table, and they complained specifically about PIX.

So now people are like, we're proud to have PIX in Brazil. We're proud to have developed it. So I think it shows that there is a space in Brazil for us to discuss more seriously what we want to become in terms of our own digital ecosystem of how we want to use these companies. So it's a moment of public support and, you know, again, we cannot speak about this without speaking about the figure of Alexandre de Moraes.

Renee DiResta: That’s who I was just about to ask about. Yeah.

James Görgen: Sorry. Just to illustrate this answer from Laís, the latest poll about this thing: we have some in favor of platform regulation, have 80%. Okay? Just to demonstrate the level of support you have from the population.

Renee DiResta: I think that it is one of these, I mean, there's overwhelming support here in the U.S. and I believe in Europe also, then you get into the details and the question of how is where that challenge is. I see Joan nodding also––I'm going to bring you back into this too. So let's go back to the judge here, because my understanding, and this is where I would love some clarity, is that he has extraordinary power––we would almost call it to legislate from the bench here, in American parlance, right?

And so that question of the decisions that he can make almost unilaterally, not only enforcing the law as we saw him do with the request to X last year, where he said, I want this data, I want these takedowns, right, which is in keeping with, as I understand it, in keeping with enforcing the law as-is, which is one thing which, which I think American audiences would see as normal. This is the role of the judiciary, mostly, versus setting policy and steering regulation himself. So I'd love to hear, and then maybe Joan, if you want to take this first, just that dynamic of––maybe you could explain a little bit of how he figures into this and why he has become such a central figure in this debate to the extent that he did wind up, you know, maybe rather hypocritically, but with becoming the central figure in this, this, this theater from Rubio and others.

Joan Barata: Yeah. Well, as I said before, I mean this is, I mean, very characteristic of the Brazilian legal system is that the judiciary can sort of legislate and can go farther than the judiciary of other countries or other legal systems that we know, including the United States.

So that is something that already puts him, I mean, at the center, him and the, the rest of the members of the Supreme Court, and this is why all these sophisticated, if you wish, or more detailed elaboration about Article 19 of the Marco Civil was so much expected. It was not black or white. No, it was just that the judges could say no, from now on, this is the way we see intermediary liability.

The other element of course, has been his fundamental role that he played in the whole investigation of the case against Bolsonaro. And I think that also, I mean, in a way, his detractors have also put him in, in a very important position. Because since he has become the target of sanctions from another country, he has been become the target of the, of the far right. This has only increased the aura of power, and the aura of the man who makes justice in the, in the country.

This is never good. I mean, for the judicial, I mean the judicial is a power that that needs to be more discreet, but probably in this case it's almost impossible.

And I have to say that something that, by the way, your very first remark––I think it's very remarkable that Brazil has managed to organize this trial. Because in, in the region and beyond the region, always, I mean this kind of, let’s say, analysis of previous regimes or the performance of prime ministers, presidents, et cetera, ends up with an amnesty law. So that we adopt an amnesty law and we, we forget about that.

This has been an exception. This is remarkable. But it's true also that, perhaps, I mean, in his battle with X and Elon Musk, he––and according to lawyers and scholars that I trust in Brazil––the kind of legal procedures that he used, the kind of decisions that he took, were questionable, in terms of due process, in terms of necessity, in terms of proportionality of the decisions that he took.

And the final remark, I think, which is something that unfortunately is the case, is the polarization and politicization of a discussion that is far more complex than the separation between the left and the right. I mean, if you question the, the fake news bill, then it seems that you're either defending Bolsonaro or the big tech.

Whereas if you are on the left side, you are supposed to be in favor of, of the bill. And I think that in, in terms of civil society and discussions, this has been a little bit, a little bit problematic in the country.

But all in all, I think the, the, the importance of the decisions that he took, the fact that in some cases they were very much controversial from a legal point of view, and the fact that he has been the target of a campaign, clearly, a campaign to intimidate him from a different country. And that's the way I see it. Of course, it puts him at the very, very center of any relevant political debate in Brazil nowadays.

Renee DiResta: Laís, I know you have a lot to say on this one too. Go ahead.

Laís Martins: Yeah, I, I think I disagree a bit. There is something we're missing that needs to be said, which is the only reason the Supreme Court of Justice in Brazil stepped in and started looking at tech regulation is because Congress failed to do so.

And you mentioned the fake news bill, right, Renee? The fake news bill was years in the making, and it failed to get enough votes because of big tech lobbying on the floor last-minute. Like, they were there––we saw them there speaking to representatives to try to sway their votes. This was a democratic process. Of course it wasn't perfect, but it was the best version of a bill that we were able to produce before the 2022 elections.

It failed. This is when we start seeing the Supreme Court dedicate itself more to tech regulation. And I think none of the justices there wanted to touch upon this. They know this is a very heated debate, a controversial debate, that should be left to Congress, but they, they stepped up to the moment because they realized the harms were outweighing the gains in Brazil.

And specifically Moraes, I, I agree, Joan, with the part that some of his decisions are controversial. For example, I would highlight that he is the leading justice on many probes that are open for years now, like five years, and they are secret. We don't know the content. Sometimes we get a hint based on, like, police actions that come out of these probes, but many of them, for example, the fake news probe is a huge document that none of us have actually seen because it's still under secrecy.

But I think Moraes stands out because he gets the job done. You know, he, he is one of the new justices in the Brazilian Supreme Court and he operates at a different logic than the other justices who are much more political, although they try to deny this. They have their own interests. Moraes, he comes in, he gets the job done.

So I think this kind of bothers, because he's a very pragmatic judge. He just goes and, you know, does the orders, blocks, what needs to be blocked. He's quite reasonable in changing his mind. He has changed his mind a few times and backed down on a few of his decisions, but I think it's easy to look at him as an authoritarian if you don't look at the entire context of what is happening in Brazil.

Congress is horrible. It's really hard to get anything done. So I think also it shows, you know, James spoke about the bills that we have going on. None of them really touch into content. There's this idea that any, any bill in Congress that tries to, you know, venture into regulating content will be shut down. So the Supreme Court has had to do it, and it's an ungrateful task that has been left up to them, you know?

Joan Barata: Just as a clarification. No, I don't think that, that the, the, the Supreme Court playing this role is a bad thing. It's just a characteristic of your, of your legal system. It's fine. I mean, and in this case that, I mean, we, we, there were so many doubts in terms of what is constitutional, what is not constitutional. I think I see that, basically, that the Supreme Court tried to fine-tune.

The other thing that I just wanted to, to say is that when it comes to the fake news bill, it's true that there was intense lobbying from, from, from the tech companies, but of course it's a big market. Brazil is a big market. But we also need to acknowledge that there was criticism also coming from other, from experts, et cetera, from, from a free speech perspective. And that is, we have room for a, say, a legitimate legal discussion on whether, I mean the law is sufficiently clear and et cetera.

In this sense, I think what I always recommend in countries that have these kind of discussions is that we need to adopt a law thinking that it, this might be applied and in the case of Brazil, I say, this might be applied when Bolsonaro is in power, or someone like Bolsonaro is in power, which might happen in the future. Do you think that with that law, you in Brazil, you are safe .Now you say, okay, Lula government, even if the law has flaws, it's fine because we, we, the intentions are good to protect democracy. But the same exact law with these very broad––broad, vague definitions without a clear, independent regulatory authority that doesn't exist in Brazil yet, wouldn't it be more––clearly more dangerous if put in the hands of a different government. I think it would be, no?

And that, that is the main reproach to, to, to, to the law, you know, that we need to think in the long term. And, and we think, need to think of laws that will be enforced by different kinds of governments with different tendencies.

No, I understand that now everything is about the next elections. I mean, and I understand and there's this urgency to, to avoid, wrong things happening again. But when, when adopting a law in such a, let's say, delicate manner, huh? We, we also need to take into account that this may end in, in, in the hands of a different government. No, and this is where also most of the concern was, was, was expressed.

Renee DiResta: James, I know you've been, you've worked through multiple different administrations. Where do you see Moraes or even the judiciary in general? It's, it's interesting to see this, this the sense of, you know, one person having power to remove logjams and things on one hand, which given the American Congress, you know, I think many people are, are sympathetic to the idea that suddenly people can get things done while at the same time, the sense that it gives one person an extraordinary amount of power, which also as Joan articulates in the sense of Congress, but you can make this point in the realm of the judiciary as well as, as, potentially quite, quite dangerous. Do you see it as a sign of institutional imbalance? Like how do you, how do you think about this?

James Görgen: Oh yeah. I think the risk exists, but we cannot create some terror and panic about this, even about this regulation in terms of child, we approve right now. Because always you have this discussion, the debates to silence the, the debate you have these two arguments, the liberty of expression and the free speech, and also the, the panic of authoritarian people will take place in the government. You, you put in place some authoritarian censorship and everything.

You have this past, but I think we have thirty-five years of the, the, the more or less the, the mature democracy right now. If you have some laws approve it, you have also a, a Supreme Court take care of this, if you have a president trying to invert this and try to attack this society with this kind of law who have this system. Our system to, to take care of this or to supervise this. Then I think the, the argument is also a fallacy to avoid and to postpone.

Always this discussion about content regulation that say lies said, and also we have this always, or only with the left, is in power. This is very curious also. When the, the, the extreme right or the right is in power, nobody discussed this case because it's totally our reality, then we cannot go, go beyond this.

But we, we have some left governments, I think four or five governments, since the 2003 in Brazil five left governments. Even when try to, for example, approach for the journalism laws or, or left abuse. The, the same arguments come and came in all moments. And we have this discussion even with my colleagues in the civil servant services who have this also. Then it's very difficult to try to unmute this discussion in Brazil.

And also because we don't have a lobby regulated in Brazil, we don't have a regulation or lobby regulation in Brazil, different of United States, because that is more danger to the lobby of the big tech in the Congress because you can, you don't have transparency about this.

And also today or currently, they dominate the, the Congress like, like you said. The Kids Online Safety Act passed in Brazil right now because we have some, a video from an influencer about yeah, we, we know what we, we are talking. And after that you create some, I dunno the expression, but we create some consensus about the regulation because that, to have the pollings showing this reality.

But I don't know––after that we can, I think we have the perfect storm, right now, to regulate this enterprise. We can defer [inaudible] this other fallacy I have in this discuss, because we are taking all the players in the internet with this regulation. No, we can defer and say this and this is possible to do. Europe separate this kind of players and actors on the table.

And I think it, it's, it's possible we cannot create panic and terror about this common regulation of other segments, economical segments, and we are create some safe harbor again for this enterprise.

Joan Barata: I, I don't think that critics of the fake news bill are against the existence of regulation. I think that I mean if we, even if we follow the standards of the Inter-American Commission on Human Rights and the Special Rapporteur, I mean, it's clear that some, some degree of, of regulation beyond even what is already in the, in the Marco Civil might be, might be needed, no?

The reflection is what is the best possible regulation and to avoid, I mean, poor forms of regulation or types of regulation based on concepts or systems, tools that might at some point be misused. I think that's the main thing, and this is what happened in Europe. I mean, many of us, we said, well, I mean a DSA model as a model is not, is not bad as such, but the experience has shown that there are some parts of the DSA where further safeguards in the law would have helped to, let's say, have a better implementation of, of, of the law in this sense, no?

I think that the discussion, I, I don't, I don't, I don't believe anyone says that freedom of expression is absolute, even in the, in the United States. And at this point, we, we understand that the debate is around how to make a good law in the field––ow to have proper regulation in the field of online platforms. Not whether to have it or not to have it? No, I don't think that for the majority of those who are experts or interested in the, in this matter, beyond other interests. I think that the, the debate is about how to make a good law. I mean, when, which aspects of the fake news law should be improved in order to avoid possible abuse.

So, just to, I mean, make sure that here we are, not saying this is, shouldn't be seen as, as, I mean, a kind of a clash between regulation or absence of regulation. So it's about––we need to discuss how to make a good regulation that is resistant when it comes to possible misuse.

Renee DiResta: I think one of the––so for the, I don't know, Laís, if you want to talk about the kids' online safety situation.

In my understanding, there was a, an influencer who wrote a little bit about the dynamics of ways in which children are often promoted to unsavory accounts. The sort of sexualization of children in particular. We used to do some work on this at Stanford Internet Observatory, ways in which certain types of accounts are promoted to users who were clearly there for unhelpful reasons, right to, to accounts that are there, or these very borderline cases. Accounts that are producing content about gymnastics or dance are promoted to men who begin to comment in ways in which that leads to certain types of recommender systems taking over and doing bad things.

And so that the, that, that video resonated with me in the sense that we've, we've actually done work on this. The platforms know that this happens. That is not a thing that they are not aware of, right? And they don't respond to it as well as they should. But, having also looked at the sort of first draft of some of the legislation, it seems that one of the things that I think the DSA has done and that other laws, speaking to Joan's point about creating good regulation, is that there are, in some laws, you do see things like right to appeal. And I'm not talking about the child predator aspect of it. I'm saying more that these laws that come with blanket notice and takedown and other things, there is a, a chance of overenforcement, politicized enforcement, ways in which enforcement is manipulated. This conversation came up here in the U.S. around the Take It Down Act, you know, how would content be mislabeled as exploitative, or you know, in, in ways that would prompt platforms to remove very, very quickly to avoid a penalty, when in actuality that content was not what the reporter claimed that it was, and maybe the reporter was doing it maliciously. Things like this.

So how do you have, how do you balance the notice and takedown with the right to appeal? Or, when a platform takes something down, how do you create that right to appeal for users? This is an area where I think the DSA does it well. So I'm curious how, you know, how you have seen this conversation evolve?

Because one of the things that you do see is when you have these very high-profile moments, particularly when an influencer shines a light on something that is as egregious as what that is how do you then have good regulation come out of it?

Laís Martins: That's a great question. You know, I think the influencer video was just the final push.

This bill, the Kids Online Safety Act, had been in the works for I think two years already. Lots of debate, and over time it gained bipartisan support. I mean, right-wing, even like far-right actors, former Bolsonaro ministers supported the bill. It's a different area, right? Because I think kids and protecting children and teenagers online is––it's really bad to be against it. Like, no one in, in their sane minds would say, “I'm against this type of bill.” So I think this kind of explains––but I'm with you, Renee. You know, I've been writing about this topic for at least five years, and I'm like, now this influencer did this video, and it suddenly seems like, oh wow, everyone is finding this out.

I'm kidding. I'm not discussing––I think it was very effective and it really boosted attention around this issue. And it became very hard for tech platforms in Brazil to fight the bill, although they did try to lobby against it. Again, they're so present in Congress that even this non-controversial topic became a subject of their lobbying.

The issue is, you know, and I think no one was really discussing this the past few weeks because there was this good moment around, we just approved this massive bill. It's so hard to get any tech regulation approved in Congress that people were not discussing the hard parts of enforcing this. So now we're starting to see some people discuss age verification, which I know in Europe and the U.S. has become such a huge topic and kind of a blocker, right, to advancing this type of bill. So now I think in Brazil, we're going to start discussing the real challenges behind enforcing such a broad bill like this––not broad, but broad because Brazil is such a big country, and it's actually hard.

We've already seen tech platforms do a cleanup online. So a bunch of YouTube channels were taken down, Instagram pages taken down. In Brazil, we––I feel that we are often responding to challenges as they come up. So as we start discussing enforcement, we're going to have to look at the hard parts and you know, decide “this is what we want to keep and this is what we don't want to keep.”

There is a benefit, which is in Congress, generally, when we tend to draft laws around tech regulation, both sides admit that this is tentative––that we're okay with changing our minds, that we can back down on something if it doesn't work. So it's flexible in a way,

Renee DiResta: More of the European model where you pass it and then change it, as opposed to in the U.S. where it's hashed out and hashed out and hashed out, and nothing ever passes and then maybe something does. Yeah.

Laís Martins: I think we’re learning this not only with the Kids Online Safety Act, but also with the AI bill, the draft bill that was passed in Senate last year and is now making its way through the Chamber of Deputies. That would be the lower house of Congress.

There's some level of flexibility also because this field is changing so fast, right? So things that were put in the bill last year are already kind of old now. For example, when it started out, there was no mention to generative A.I. and now it has been put inside because you have to be responsive to how things go.

And I think this is a really good point because an argument often made by tech platforms in lobbying against bills in Brazil is, “this is going to get old so fast. The field is innovating all the time. Why are you going to write into law something that will become old next year?” So legislators are kind of learning and making the bills more adaptive to the innovation in the sector to try to shut down this argument that legisl–– or, regulation hinders innovation, which is a big tech argument everywhere.

Renee DiResta: And now we have the involvement of things like sanctions and, you know. It'll be interesting to see what happens as the trial winds on, and as it comes to a, I guess a conclusion. I don't know if then there'll be three years of appeals or, or what happens in your––

Laís Martins: No, it should be––

Renee DiResta: That’s it, it’s done? Okay. Well, that's different.

Laís Martins: A week of appeal at most, but before the end of this year, we'll have a decision, like a confirmed decision.

Renee DiResta: There's a lot of speculation here about how much of this is the dynamic of the Trump administration supporting its allies in the Brazilian government versus doing favors for its tech donors.

And so I think we'll see a little bit more about, you know, we'll get a little bit more clarity as the, as the, the trial continues. Maybe we’ll close with one question for all three of you. I guess I'm curious, you know, do you all see Brazil as a country with unique dynamics or as a preview of where all democracies are going to go on, where, what they'll face as they try to regulate tech in a polarized world?

Laís Martins: That's a great question. I think depending on what happens, it could inspire similar actions, at least from our Latin American colleagues. But for example, we're seeing with the whole Trump, DSA thing, the tariffs, we're seeing a similar movement start to happen in Europe. And you know, people like the Economist cover last week, saying like how Brazil is doing what the U.S. didn't do.

People are trying to paint it as if the U.S.––or as if Brazil were, were doing something remarkable. But we're just following the law. The laws that this country has established. And sometimes to me it comes as offensive that people are surprised that we would assert our rule of law instead of bending to the US, but this is how this country works. So I think if it inspires a similar movement where people say we will not back down under U.S. pressure, I think that's great. Of course, as time goes, our limits are going to be more tested as Joan rightfully brought up. Governments change. Next year is a wild card, we don't know what is going to happen. It's quite a source of concern.

But I think the, the story right now is a successful one, is “there was this coup d’etat attempt, it failed, and not only it failed, but we're going to hold the people behind it accountable so it doesn't repeat itself.” Brazil paid a really high price for not holding the folks behind the military dictatorship accountable.

I think this relates to Bolsonaro coming up, back again, and Bolsonaro defending the military dictatorship. So we learned our lesson last time, and we don't want to repeat it this time around. So I think that's kind of where the story is heading to.

Joan Barata: Yeah, if I may, I mean, I would say, I think it's important to say at this point, even if it's obvious, but it's important to say that Brazil is a democracy.

Brazil is a country where the rule of law is generally respected. Brazil is a country with an independent judiciary. Of course, Brazil. Like many other countries, one might say that is a little bit affected by the global freedom of expression crisis. No. Where some decisions, some approaches are problematic in terms of I mean restrictions that might have been imposed, but this is also something that we see in countries like the UK or Germany or the United States.

No, it's part of a, of a broader, broader discussion. No, but this doesn't mean that the fact that there are these, these, these agreements, there are decisions that might be, are questionable––this doesn't mean that Brazil is an authoritarian country. No, and, and that, I think, this, this is, this is very clear.

The other thing is that Brazil is an emerging market, a very important emerging market that needs to create its own regulatory model, of course based on human rights standards and based, based, based on lesson lessons learned from, from other. Stakeholders like the U.S. or the, or, or the European Union.

But I think that Brazil, also considering the specific characteristics of the market, needs to work on, on, on its own regulatory system. The system that it works, that is adapted to the, to the characteristics of the country. And of course that, again, that respects the, the basic standards when it comes to, to human rights.

But nobody from the outside should impose on Brazil a certain specific model or a certain way of, of seeing, so, of seeing things. Of course, Brazil is sub–– subjected to the case law of the Inter-American Court of Human Rights, Inter-American standard. That is, I mean, something good to, to as a, as a framework.

But other type of interferences are not––I don't think are, are, are good. And I think that, so far, also, Brazil has making an effort to, to resist. Which is also, I mean, something worth mentioning. And today, what we are seeing today clearly shows that that this is the case.

Renee DiResta: James, final word?

James Görgen: Yeah, I think more or less the same words from Laís and Joan because I think Brazil is stronger than, I don’t know, 40 years ago, because our political crisis, it was or where resolve it or, or solve it. But we need to build a lot of other safeguards and all these things. But for me, I think is, is important, is fundamental. We trying to ordinate or organize this digital ecosystem in Brazil because all the economic transactions, the political speech and the narratives is passing for this enterprise.

And we need to control, in the sense of regulatory control or supervision of, and sanctions for this aptitudes and when we, we have some problems without forget this kind of preoccupation or concerns about free, free of speech and all these things. But we need also entering the business model discussion and economic discussion about digital platforms and the digital ecosystem, digital agenda.

We have data monetization we are not discussing yet. We have also this AI from the economic perspective is not discussing. Always, we, we focus only in the content moderation. In our draft views and for forget the, the rest of things. Then I think we need to discuss a lot of, of these things in the, the, the next years I think.

Renee DiResta: Thank you so much for joining me on the Lawfare Podcast. I really appreciate the perspectives that y'all brought here and the incredible work that you've done over the last hour informing our audiences about this incredibly important topic. So thank you so much.

James Görgen: Thank you for invitation.

Laís Martins: Thank you.

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