Senator Angelo Coronel (PSD-BA), president of CPMI of Fake News, said in several tweets from his official account that he will “arrest anyone who hides with a false profile and does not show his face”, saying that “whoever hides behind false profile goes to jail ”. For lawyers specializing in digital law, there is no legal basis to allow this. The advisory alleges that these statements were “a force of expression”.
Last Tuesday (10), the senator said in his profile Twitter: “I will arrest anyone who hides with a false profile and does not show his face”. On the same day, he stated: “Soon the fake ones will collapse. Loose chain that hides behind a false profile and doesn’t show its face ”.
On Thursday, the president of CPMI came back to promise that “fake profile is going to be jail” and declared: “Chain for false messages”. Another message says that “False profile will give cane. Ball for us ”. He if corrected the next day: “Ball forward”. (We reproduce the tweets here as they were published.)
In a statement to the Tecnoblog, the senator’s advisory says that these statements were “a force of expression”, and says that one of the results of CPMI may be the tightening of laws to frame crimes committed by supposedly anonymous profiles.
Regarding the statements of the Senator on Twitter, he was a force of expression to show that it is necessary to deal harder with these people. Current criminal law is perfectly applicable to cases of those who commit injury (including racial), defamation, slander, threat, etc.
In addition, one of the possible results of the CPMI is to propose to Congress the tightening of legislation and specific criminal types for those who use the virtual environment and the supposed anonymity that exists there to commit crimes.
On Twitter, Colonel says that “soon the fake ones will collapse”:
Having a fake profile is not a crime in itself, advocates defend
The lawyer Adriano Mendes, specialized in digital law, explains to the Tecnoblog that maintaining a false profile is not a crime in itself. This could be framed only in specific cases: for example, if one person pretends to be another on social media; or if the content involves slander, injury or defamation.
“I can create profiles that don’t necessarily have my name; what I can’t do is create a profile with someone else’s name ”, says Mendes. After all, this would fall under Article 307 of the Penal Code, which deals with ideological falsehood.
For Matheus Costa de Melo Moreira, lawyer specializing in digital and internet law, what matters most to the judiciary is not simply the false profile, but the result of his actions: “the concern with false news or rumors is the legal consequence that this brings”.
For example, if a profile publishes content that involves crime against honor (defamation or slander), it is possible to fit it in the Penal Code. Moreira also recalls that these crimes involve private and conditioned criminal action: that is, the victim himself has to sue – instead of someone else or the Public Ministry, for example.
Thus, the senator cannot “arrest anyone who hides with a false profile”. He would have to file a complaint with a delegate with evidence of materiality (what was the crime or offense committed) and evidence of authorship (who committed the act).
The delegate makes an inquiry and forwards it to the Public Ministry, which decides whether to make the complaint or not. If the process continues, he will go into the hands of a judge, who may order an arrest.
Fake profiles are “pseudoanonymous”
Brazilian law protects freedom of expression and prohibits anonymity. But, as Mendes notes, profile fakes are “pseudo-anonymous” because they are associated with IP numbers and an email address – so they are not necessarily illegal. The Marco Civil da Internet requires ISPs to provide navigation logs for certain users by court order, allowing them to be identified.
“In view of an anonymous profile, or that uses someone else’s data, the Judiciary is already sensitive, in most cases, and determines based on the Marco Civil da Internet, Law 12.965 / 2014, the supply of records so that it is possible to discover who is behind the profile ”, explains the lawyer José Miracle, specialist in digital law, by Tecnoblog.
For Milagre, many politicians use the pretext of punishing fakes to “remove legal content, criticism and unfavorable information from the internet”. He believes that we must be careful “so that this legislation is not the escape valve for politicians to censor freedom on the web and quickly remove everything that displeases them”.
Fake News CPMI calls WhatsApp and Facebook
The Joint Parliamentary Commission of Inquiry was opened on September 4, bringing together senators and deputies with the aim of investigating the spread of false news during the 2018 elections.
In an interview with Estadão, the senator defended that the CPMI will not be used as a form of censorship: “if you want to attack a person, you need to put your face on the screen. What you can’t do is stay behind a robot, a fake profile, and create attacks. This is not censorship, it is going after the person who uses social media to depreciate someone else’s image ”.
The CPMI approved this week the call of the legal representatives of WhatsApp, Facebook, Instagram, Twitter, Google, YouTube and Telegram. The website The Intercept, who leaked messages between Deltan Dallagnol and Sergio Moro, and university professor Lola Aronovich were also summoned.
“Whoever has to speak first is exactly the means in which the alleged fake news are transmitted,” said Deputy Luizianne Lins (PT-CE), who participates in the commission. Senator Flávio Bolsonaro (PSL-RJ) is opposed to CPMI: “they will bring those who use social media or private media to start looking for a specific fact, if it exists, and it is not configured here”.