Can Big Tech be held accountable? Brazil puts it to the test

Brazil has become one of the world's most closely watched testing grounds for regulating online platforms. Building on its landmark 2014 internet governance framework, Brazil has steadily expanded platform accountability in response to disinformation, political violence and other online harms. 

Following President Luiz Inácio Lula da Silva's return to office in 2023, Brazil has made combating online manipulation and harmful content a policy priority.

A recent Supreme Court ruling marked a turning point: Rather than treating platforms as neutral hosts of user content, it requires them to take proactive steps against specific forms of illegal content, significantly expanding their legal responsibilities.

In this exclusive interview, former Deputy Secretary for Digital Policies Nina Santos explains the thinking behind Brazil's approach, how the government sought to balance platform accountability with freedom of expression, and why she believes the country's regulatory framework is still incomplete.

How did the topic of information integrity and Big Tech regulation end up on Brazil’s agenda? 

The idea of fighting disinformation was already part of public debate. Our previous government [under Bolsonaro] was notorious for producing disinformation, particularly during the pandemic. Our 2022 elections were fraught with major disinformation campaigns. And then we had the coup d’état in January 2023, where people invaded the government buildings in Brasilia. That same year, we had a wave of attacks on schools that were organized through social media.

Those episodes once more made clear that the information circulated in digital spaces has a direct impact on our lives.

Critics argue that regulation of social media stifles free speech. What’s your response?  

Let me first stress that I think the debate about free speech is very important. We must guarantee that we're building a democratic digital society. We cannot avoid this debate. But I think there are two fallacies behind this discourse. 

First, what happened in Brazil, and I think in many parts of the world, is that the debate about freedom of expression was distorted.  

There is this idea that free expression and regulation cannot coexist. But the platforms decide what can and cannot circulate: You have opaque rules that are decided by private companies within their own vision of society.  

What we are doing through regulation is bringing those rules into the public debate, with more transparency and with more public participation, not as a one-sided decision by individuals in private companies.  

The second thing is understanding that freedom of expression is an essential right to be protected, but it needs to be approached as a collective right, not as an individual right. For example, racism is a crime in Brazil. Nobody should be able to express a racist statement, online or offline. That clashes with the idea of limitless expression. That’s why we have been trying to push towards regulations that protect fundamental rights in the digital arena.  

We want to make the digital space the most secure it can be so that citizens can exercise their citizenship online and profit from the many good sides of technology.  

But when we're talking about children and teenagers, about women, or about frauds and scams, we see how vulnerable these groups are because of the lack of rules in online spaces. We created those regulations to protect them on social media.  

What are those rules? What do you think are the most important regulations that Big Tech should accept as a standard today? 

The new regulations place responsibility on the platforms: They need to proactively monitor their content to make sure there is no criminal content. This applies to seven categories: digital fraud; deceptive advertising; terrorism; child sexual exploitation; human trafficking; encouragement of self-harm; and violence against women.  

The new rules expand on the Civil Rights Framework for the Internet [Marco Civil da Internet] that was first introduced in 2014. Previously, platforms only had to take measures against content considered harmful if there was a court order. The new regulations reverse this accountability.

Social media platforms are now directly accountable to the National Data Protection Agency (ANPD) for their content, to which they must report and be transparent.

The decrees also establish that platforms need to be responsive regarding the actions they take, to notify the ANPD that they have taken content down, or else to explain why they didn’t. People also have a right to appeal if their content is affected - and potentially have content restored if it’s found to be in line with the rules.

Placing that responsibility on the platforms - does that really work? For example, non-consensual intimate content must be removed within two hours. That seems ambitious.  

We'll have to see. The decree has a 60-day interim period until it must be enforced. So, we don’t yet have any data. But we do think that it can be enforceable. We’re talking about very specific categories of content that platforms must proactively monitor under the idea of duty of care established by the Supreme Court. We had similar rules already under the Internet Civil Act. People could notify platforms about non-consensual intimate images. We can speak about that in October or November, but I think it's enforceable. 

Does Big Tech pose a threat to democracy? 

I don't think that Big Tech per se poses a threat to democracy.  

It’s very important to remember that Brazil doesn’t have the tradition of public media. We’ve historically had a very concentrated mass media environment that was in the hands of a very few families who represented a very small part of Brazilian society.  

We need to acknowledge that nowadays we have more diversity and plurality in the media that exist in Brazil. And that's very much thanks to digital spaces.  

But we’re now returning to a similar state: The digital space and media are being structured around very few Big Tech platforms. And we have very little transparency about what happens inside them. There is a concentration of attention, a concentration of information, a concentration of power on deciding what becomes available, with very little transparency about how those decisions are being made.  

The difference is that the mass media we had in Brazil were accountable for their editorial decisions. Big Tech companies, on the other hand, are not held accountable. Our regulations change that: rather than holding someone that produces content accountable, we hold the platforms that control the distribution of information and content accountable. We want to create this systemic shift.  

How do you counter Big Tech’s lobbying? 

This lobby is very powerful, especially in a moment when Big Tech has become very close to a certain part of the political spectrum. And that makes their lobbying very difficult to counter.  

But the Brazilian government never gave up on keeping the platforms at the negotiating table. That doesn’t imply agreement between the government or the platforms - it is about maintaining an open space of dialogue where these disagreements can be debated. We also learned a lot from the discussions: How the platforms operate, how they make their decisions. That makes our rules more enforceable and applicable to the technology and the processes that the platforms are actually using. 

How do you mobilize public opinion for regulation?  

It can be very difficult to mobilize people around the idea of platform regulation because it can feel very abstract. The discussion needs to be made concrete to gather support from members of Congress, judges and public opinion.  

We realized we needed to identify what really affected people's lives. Online frauds and scams are a huge problem in Brazil. But one example: People here pay a small fee to apply for public sector jobs. Many people were scammed when they thought they were paying a fee to the Federal government. A huge part of the problem is how those frauds and scams are spread online, and a huge part of that is through digital advertisements. So, this matter became part of our communication strategy. In the end, the three angles we explored in this discussion from 2023 until now were content about children and adolescents, fraud and scams and violence against women. 

What is missing in Brazil’s approach to tech regulation? Where should Brazil go, in your opinion?  

We’re having an ongoing discussion in Congress about AI regulation right now. In Brazil, we have a special court for elections, the electoral Supreme Court. It introduced specific rules for the use of AI during elections. But this only applies to the candidates and the campaigns, not to all citizens. 

I would say Brazil still has a way to go here. We have an AI digital market bill that looks at competition on the digital market. But this is not about content. I think the regulation of AI content generation is one front that we still need to advance very much on.