230 and 19
Two countries, one issue – the fate of the internet
Technology and the marketplace have changed since the 90s, and so must our expectations about the role and obligations of online platforms. Today the path for the dissemination of information is open and driven by algorithmic recommendations. Social media and technology play a role in spreading misinformation while platforms use personal data and algorithms to target users. Operating under a shield of immunity, platforms became vehicles for disinformation that radicalizes users.
I am no Luddite, I use tech in my daily life, I worked in tech during all of my professional life, and I am a believer in tech for good. Over the last few decades, we experienced exponential growth in capabilities and tech became an integral part of our daily lives. To keep this momentum, we need to work on safeguards to prevent excess and protect users. In doing so, instead of hurting progress, we will help accelerate it. Every racetrack has its guard rails.
Different countries are approaching this in different ways. At the heart of today’s discussions are the legal statutes that protect internet platforms immunizing companies like Google, TikTok, Twitter, and Meta - Facebook, Instagram, and WhatsApp from liability in connection with user-generated content that is posted there.
In the US, Section 230 of the Communications Decency Act, is the law from the 1990s which creates a liability shield for internet platforms. In Brazil, Article 19 of the Civil Framework of the Internet (Marco Civil da Internet), has been put in place in 2014 with a similar effect (*). Both try to strike a balance between platform liability protection, the amount platforms invest in content moderation, and considerations about the value society places on freedom of speech.
There is an active debate between those who advocate keeping the status quo, with strong platform liability protection and a bias towards unfettered free speech, and those that are concerned with how this laissez-faire approach can lead to abuse, extremism, and the hijacking of platforms by authoritarian actors. Full disclosure, I am in the latter camp. Europe has launched its version of platform regulation via the Digital Services Act and Digital Markets Act. The UK has established a Digital Markets Unit to start reviewing the competitive nature of digital markets. In the United States cases involving Google and Twitter have made it to the Supreme Court and are waiting for a ruling. In Brazil, recent hearings at the Supreme Court (STF) question the constitutionality of Article 19.
There is an emerging consensus that something needs to be done. The answer may lie between the heavy European approach and the hands-off American one. With differences in constitutional law, legal tradition - Anglo-Saxon Common Law and Romano-Germanic Law (Civil Law) - and culture (which ultimately will dictate what society will accept), Brazil can emerge as a model to be followed with legislative proposals that focus on transparency, due process, fairness, and audibility.
Stay tuned. The changes being discussed in these different jurisdictions can help us regain control of the internet.
(*) Similar but not equal. I asked our friendly assistant ChatGPT to summarize the differences between the current American and Brazilian existing approaches. In future articles, I may come back with more details about the new proposals.
This article represents my personal views. It does not represent the views of any companies I have been or am presently affiliated with.