In force this Saturday (17), the new digital rights law in Portugal has come under criticism because of a potential risk to freedom of expression. Technology experts, journalists, politicians and NGOs have already expressed concern about Article 6 of the rule, which could lead to an interpretation that the state is responsible for deciding whether information published on Internet are true or not.
The government rejects this possibility, but the controversy surrounding the legislation, dubbed the Portuguese Charter of Human Rights in the Digital Age, has already taken hold. The law introduces the notion of disinformation – “any story that turns out to be false or misleading (…) to gain economic advantage or to deliberately mislead the public” – and says that anyone can file a complaint about it. with a specific entity: an ERC (Social Communication Regulatory Authority).
Currently, the ERC, a public body at arm’s length from the government, is responsible for supervising and regulating the media. With the new rule, the entity’s scope would be extended to information published online in general. In other words: the body, in the final analysis, might have, depending on the interpretation, the power to decide what content is considered legitimate in the country.
The text provides for decision-making support mechanisms on disinformation, such as the creation of “verification structures by registered media organizations” and “the attribution of quality labels by trustworthy entities”, but does not specify what these bodies would be, nor answer how it would maintain the exemption of entities from funds granted by the government to carry out the work.
According to the assessment of constitutional expert José Carlos Vieira de Andrade, in an interview with the Lusa news agency, “the terms in which the law is drafted, in particular because it uses indeterminate concepts, can lead to a restriction of the law. freedom of expression “. For the specialist, article 6 belongs to the “family of censors”.
President of Associação D3 (Defense of digital rights), lawyer Eduardo Santos believes that it is still premature to speak of a risk for freedom of expression, but he criticizes this point of the text.
“The proposed solution is to use the ERC, whose role is widely criticized. It is a common criticism to say that he is not doing enough to avoid some less good practices in the press, ”he said. “Social communication is a very regulated activity. Regulation on the internet is much more difficult, it’s a whole different order of magnitude. It is therefore quite debatable whether we will be able to reveal this discourse through the same mechanisms we are used to in the media. “
In the face of the controversy, the Union of Journalists of Portugal said it would ask the Attorney General’s office for a review of the article’s constitutionality. In addition to indicating that the law can confuse what is information produced by professional journalists and what is not, the agency criticizes the hijacking of ERC functions. For the union, the change “would amount to diverting to an administrative entity powers that belong to the courts, such as that of assessing the legitimacy of the exercise of the freedom of creation and expression”.
Despite the controversy, the legislation was passed by the Portuguese Parliament in April, with no votes against – and only a few abstentions. It was only after the rule left the House that some parties, such as the Liberal Initiative, which abstained from voting, began to criticize Article 6.
At the end of June, the Socialist Party, biggest parliamentary bench and legend of Prime Minister António Costa, presented a complementary bill to frame the most contested points of the law, such as the type of funding of institutions that would support the fight against disinformation. , and was accompanied by other acronyms, which deliberate on similar initiatives.
“We used to say that the devil is in the details, and here we have no details. In the absence of details, we are in the realm of speculation. Further legislation is needed to develop the article, ”says Eduardo Santos, president of D3. Former constitutional law professor, President Marcelo Rebelo de Sousa promulgated the law in May, without questioning possible restrictions on freedom of expression. When questioned later on the subject, he defended the content of the rule.
“It would be serious if the state did censorship, it would be intolerable. And it would be intolerable if, even if he did not censor it before, he censors it after. I would never adopt such a law, I have spent my whole life defending press freedom, I would never adopt it, ”he told reporters.
The Head of State compared the attribution of reliable information seals to seals that currently exist in other areas, such as the tourism sector, which are granted by public utility institutions, but not by the government. State. “It’s not the state, the state just had to say it. It is other entities that do it. It’s worth what it’s worth, it’s an opinion, ”he added.
Despite criticism of the article on disinformation, scholars see positive points in the Portuguese Charter of Human Rights in the digital age, such as the strengthening of the right to internet neutrality and the right to privacy. cybersecurity. “A positive point is that it enshrines the duty of the State to have an accessible and quality Internet connection accessible to all”, underlines Santos, president of D3.