A bill tabled in the Brazilian legislature is proposing to criminalize fake news dissemination, especially during the elections.

According to the proposed legislation, promoting, organizing, financing or being part of mass disinformation activities that could put the integrity of the electoral process or government powers at risk is described as a crime subject to a jail term between one to five years in addition to a fine.

The proposals form part of a bill presented as a potential substitute to the National Security Law – the legislation currently in place dates back from the pre-democratic years of dictatorship in Brazil. However, some points remain unclear: the proposals brought forward aim to criminalize mass disinformation sent “through the use of means not provided directly by a private message application provider”.

That particularly confusing article of the bill to be voted in the Lower House of the Congress does not make any direct mention to services such as messaging apps WhatsApp and Telegram, commonly used to spread disinformation online. The bill also fails to describe exactly what would be classed as a private message application provider, or what would be the means of dissemination other than those offered by such a provider.

The means employed to spread disinformation is a particularly sticky point for the current administration: soon after the last presidential election in 2018, companies supporting incumbent Jair Bolsonaro were under fire for allegedly backing a mass messaging campaign via WhatsApp attacking his opponent, Fernando Haddad.

After the elections took place and the accusations around online disinformation against Bolsonaro emerged, TSE conceded that it is struggling to deal with the overwhelming wave of fake news created and disseminated around the presidential elections. On the point of creation to rules around controlling disinformation online, TSE minister Justice Rosa Weber pointed out that the TSE “didn’t expect that fake news would turn against the electoral system itself”.

WhatsApp reported banning more than 400,000 accounts that breached its terms of service in Brazil during the 2018 presidential elections and also capped message forwarding to five conversations at a time to limit viral message spreading. When WhatsApp capped message forwarding, president Jair Bolsonaro’s son, congressman Eduardo Bolsonaro, criticized the app’s decision at the time and said he would move to other platforms such as Telegram to communicate with the supporter base.

Last July, the Brazilian Senate passed a bill that sets out provisions to tackle the production and spread of disinformation and defamatory content on the Internet. The bill was considerably dehydrated so that it could be voted and forwarded to the Lower House of the Congress before it gets signed into law or vetoed by president Jair Bolsonaro. The bill was forwarded last week to the Commission for Science and Technology, Communication and Informatics as a matter of priority.

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