Expanding Freedom and Democracy
Freedom on the Net 2021

Brazil

Partly Free
64
100
A Obstacles to Access 20 25
B Limits on Content 24 35
C Violations of User Rights 20 40
Last Year's Score & Status
63 100 Partly Free
Scores are based on a scale of 0 (least free) to 100 (most free). See the research methodology and report acknowledgements.

header1 Overview

Internet freedom in Brazil improved slightly during the coverage period, bolstered by increasing levels of access and a reprieve from murders in suspected retaliation for online activities, which was a prominent issue in past years. Brazil’s digital rights record, despite boasting some of the most progressive and comprehensive legislation, is undermined by an increasing number of criminal investigations against online critics of President Jair Bolsonaro and his affiliates; the approval of problematic legislation that undermines freedom of expression and criminalizes vaguely defined content; and sustained social media monitoring of activists, journalists, and members of the political opposition known to be critical of the president. The health of Brazil’s online sphere has been further eroded by disinformation campaigns promulgated by Bolsonaro and his allies.

Brazil is a democracy that holds competitive elections, and the political arena, though polarized, is characterized by vibrant public debate. President Bolsonaro of the far-right Social Liberal Party (PSL) pledged to wipe out corruption and violent crime. However, his government has struggled to address these issues, targeted journalists and civil society activists with harassment, and spread harmful disinformation. Bolsonaro has repeatedly attacked independent media and made homophobic and racist remarks, which have only deepened these issues in society more broadly. High levels of harassment and violence, coupled with impunity, continue to threaten independent journalists and civil society activists.

header2 Key Developments, June 1, 2020 - May 31, 2021

  • Access to the internet increased over the coverage period, maintaining a trend of significant growth in cable, fiber-optic, and mobile broadband use seen over recent years (see A1).
  • Bolsonaro and his allies continued to flood the online environment with disinformation, pushing out false or harmful content throughout the COVID-19 pandemic regarding lockdowns by states and municipalities and promoting unproven coronavirus treatments (see B5).
  • A problematic “fake news” bill was approved by the Senate in June 2020 that would seriously undermine internet freedom, including by criminalizing certain content, creating identification requirements for social media and communications platforms’ account holders, and obliging private-messaging apps to retain communications (see B2, C1, C2, C4, and C6).
  • The Chamber of Deputies approved a bill in May 2021 to replace the National Security Act. The new bill also threatens free expression due to vaguely worded provisions criminalizing “mass misleading communication” and a lack of whistleblower protections for investigative journalists (see C2).
  • Political actors wielded the National Security Act to open criminal investigations into online critics of President Bolsonaro, including journalists and activists. One famous YouTuber had the act invoked against him in March 2021 for calling the president genocidal in a video, while one journalist and blogger was accused of violating the law for posting a cartoon on Twitter that depicted Bolsonaro turning a red cross into a swastika with paint (see C3).
  • New evidence of government ministries monitoring the online activities of activists, journalists, and federal officials critical of the Bolsonaro administration arose in June and December 2020 (see C5).
  • Over two years after it was initially approved by the Senate, the General Data Protection Law (LGPD) was finally approved by Congress in August 2020. Digital-rights advocacy organizations largely supported the new data-protection legislation (see C6).
  • The websites of one investigative outlet and one women’s rights organization suffered sustained distributed denial-of-service (DDoS). Attacks against Repórter Brasil in January 2021 forced the outlet offline multiple times, during which they received two anonymous emails threatening continued attacks unless the outlet removed all reporting from 2003 to 2005 (see C8).

A Obstacles to Access

A1 1.00-6.00 pts0-6 pts
Do infrastructural limitations restrict access to the internet or the speed and quality of internet connections? 5.005 6.006

Score Change: The score increased from 4 to 5 because more people have access to the internet in Brazil than in previous years, according to some measurement sources.

While some 67 percent of households have access to the internet, according to the 2021 Inclusive Internet Index, Brazil’s access rates remain below average when compared to many North American, European, and some Latin American countries, such as Argentina, Colombia, and Chile.1 According to data from the International Telecommunication Union (ITU), internet penetration rates stood at 74 percent as of 2019.2 There has been a notable growth in cable and fiber-optic use in recent years. On the other hand, 20 percent of households with internet access still reported connection speeds under 5 megabits per second (Mbps) in 2018, according to the most recently available data.3

Mobile penetration has grown significantly, and mobile-broadband connections have quickly become many Brazilians’ primary means of accessing the internet. The 2021 Inclusive Internet Index reported that Brazil had 96 mobile subscriptions per 100 inhabitants.4 According to data from 2018, the most recently available, some 56 percent of users accessed the internet exclusively via mobile phone.5 However, there has been a slight drop in the number of mobile subscriptions over the past few years.6

Brazil ranked 73rd globally for mobile speeds in July 2021, with download speeds of 33.33 Mpbs and upload speeds of 10.93 Mbps. The country ranked 45th globally for broadband speeds, with download speeds of 104.50 Mpbs and upload speeds of 60.68 Mbps.7 The number of smartphones with fourth-generation (4G) technology for mobile networks has increased since it was introduced in April 2013.8 The country’s level of 4G access has continued to grow at a rapid pace, particularly from the operator TIM, whose networks have the greatest capability of reaching 4G availability, according to a July 2019 report by Opensignal.9 The quality and speed of 4G services in Brazil have also improved, though better results are concentrated in wealthy urban centers in the southeast, such as Belo Horizonte, Rio de Janeiro, and São Paulo.10 Claro leads the market in speed, with an average 4G download speed of 27.7 Mbps, while its third-generation (3G) technology download speed is 5.4 Mbps. Oi, the main mobile operator in the Northeast Region, has an average download speed of 2.8 Mbps for 3G, and 12.7 Mbps for 4G.11

Brazil’s federal government has implemented several internet expansion and improvement programs since 2010, including the National Broadband Plan (PNBL).12 Although there have been improvements in internet access since its launch, the PNBL was criticized by civil society organizations for the low quality of broadband connections offered at popular prices.13 Critics also noted the plan’s poor or nonexistent conditions in rural areas.14

In 2017, the Ministry of Science, Technology, Innovation and Communications (MCTIC) launched a public consultation for a new national connectivity plan, Internet para Todos (Internet for All), to expand access to underserved areas and improve fixed- and mobile-broadband infrastructure in the country,15 including by providing satellite-broadband connectivity via Brazil’s first defense and strategic communications satellite, launched in May 2017.16 After a lengthy legal dispute, in May 2019 the contract between state-owned Telebrás and the global telecommunications firm Viasat was finally approved to continue to roll out high-speed internet services via the satellite.17 The companies said that over 3,000 schools were connected in 2019, benefiting students especially in rural or remote areas.18 As reported in May 2020, the satellite connects 11,450 points, most of them public schools. Also in May, the government froze public spending by Telebrás and announced plans to privatize the company.19

In April 2020, Bolsonaro signed Decree 10.282/2020, which defined telecommunication services and internet access as “essential services” that must be provided during the COVID-19 crisis.20

In October 2019, Bolsonaro signed Law 13.789/2019, which reforms the 1997 telecommunications law.21 Instead of a concession system, in which telecommunication assets are returned to the government and companies pay fees, the legislation shifts to providing authorizations for telecommunication services, enabling providers to directly own these assets.22 As providers are thus able to sell assets, the project is seen as a major driver of investments to expand internet coverage; it also releases companies from their obligation to invest in the maintenance of public telephones and fixed-telephony infrastructure. The law also promotes investment in broadband infrastructure, particularly in more remote areas.23

In December 2020, Bolsonaro enacted Law n. 14.109/2020,24 which reforms the Fund for the Universalization of Telecommunications Services (FUST) law so that money collected can be used for the construction and improvement of broadband infrastructure.25 However, Bolsonaro vetoed mandating the allocation of resources to geographical areas based on criteria such as the Human Development Index (HDI) and the requirement to connect all Brazilian public schools with FUST resources.26

In February 2021, the National Telecommunications Agency (Anatel) approved the rules for a spectrum auction for fifth-generation (5G) technology expected to take place in June 2021.27 The rules require telecommunications companies to migrate to stand-alone networks in 2022, provide broadband connectivity to the Amazon region, and construct a separate network for the federal government.28

A2 1.00-3.00 pts0-3 pts
Is access to the internet prohibitively expensive or beyond the reach of certain segments of the population for geographical, social, or other reasons? 1.001 3.003

Geographic and socioeconomic disparities in internet access persist in Brazil. The most recently available study, from 2018, shows that internet use is lower in rural areas (49 percent) and the North and Northeast Regions (64 percent), as well as among lower-income populations.1 Price is considered a main barrier: in 2018, 61 percent of households that did not have internet access said it was because it was too expensive.2 In April 2020, however, a court decision determined that consumers could not lose internet access if they did not pay their bill. Anatel’s appeal of the ruling was rejected.3

Limited mobile plans that include zero-rating agreements—which provide free internet access under certain conditions—for unlimited access to certain platforms are common in Brazil. Some analysts believe this contributed to the spread of disinformation via WhatsApp during the 2018 elections.4

Sharing internet connections is a common practice in Brazil, particularly in poorer neighborhoods. In 2018, Anatel stated it may allow the blocking of TCP/IP ports of “home providers” who shared their residential connections.5 According to the regulator, this would not violate the principle of net neutrality, though they had not followed through on the suggested policy by the end of the coverage period.

Higher data usage poses additional costs, and lower-income users tend to have connection plans with low data caps. According to Anatel, 55 percent of mobile internet connections were prepaid in March 2020, typically with low data caps. The freedom of expression organization Intervozes has urged regulators to prohibit disconnection after data caps are reached.6 Before becoming president, Jair Bolsonaro presented in 2017 a draft bill that would reform an article in the Marco Civil, the country’s civil rights framework for the internet, and prohibit data caps for broadband internet access.7 However, in February 2019, the government announced that such a reform was not a priority.8

The coronavirus pandemic highlighted the existing digital divide in Brazil,9 spurring the introduction of several draft bills regarding access to the internet in both houses of the National Congress over the course of 2020.10 In February 2021, the Senate approved draft bill n. 3477/2020,11 which would provide 3.5 billion reals ($655 million) to states and municipalities to use to better provide internet access to students and teachers from the public school system. The draft bill also provided for the purchase of tablets for low-income and public high school students linked to CadÚnico (the Unified Registry for Social Programs provided by the Brazilian government).12 Congress overturned President Bolsonaro’s March veto of the bill in June 2021, a decision that Bolsonaro’s government has since disputed in the Supreme Court.13

A3 1.00-6.00 pts0-6 pts
Does the government exercise technical or legal control over internet infrastructure for the purposes of restricting connectivity? 6.006 6.006

The government does not place limits on bandwidth, nor does it impose control over telecommunications infrastructure. There have been no reported instances of the government cutting off internet connectivity during protests or social unrest.

Judicial orders have at times blocked communications apps for not fully complying with information requests as part of criminal investigations, although no such cases emerged during the coverage period. In 2015 and 2016, service providers temporarily blocked WhatsApp on three occasions in compliance with judicial orders (see B1).1 There was also a judicial threat to block Facebook in March 2018 if the platform failed to swiftly remove “false information of criminal content” related to the murdered politician Marielle Franco, but the order was not implemented.2

Concerns have been raised regarding the army’s authorization to use “jammers” during the Olympic Games and other operations.3 According to authorities, the use of such equipment would primarily target drones,4 but using them to block mobile phones was not excluded.5 The measure was criticized for its lack of transparency (the act that authorized the army to use jammers was deemed “secret”) and the absence of specific legislation regulating their use.6 The armed forces were also authorized to use jammers during Independence Day celebrations on September 7, 2018.7 In October 2019, Anatel approved the use of jammers in areas where Bolsonaro and Vice President Hamilton Mourão are located. The authorization is valid until 2022, and the purpose of the jammers is reportedly to prevent the remote activation of explosive devices. In addition, their use is to be limited to discrete situations and must be based on concrete evidence.8

Over the past decade, private backbone infrastructure, such as that of Oi, GVT, and Embratel, has expanded in Brazil.9 In 1998, the state-owned company Embratel, which was responsible for building the internet backbone, was privatized and acquired by the US company MCI; it was acquired by the Mexican telecommunications company América Móvil in 2003.

Internationally, undersea cables connect to Brazil from North America and Europe. The first undersea fiber-optic cable linking Brazil to Europe began operating in June 2021,10 a joint effort by the governments of Brazil and Spain.11 The construction of these connections fulfilled the desire to avoid reliance on US infrastructure, after revelations of the US government’s pervasive spying on Brazilians in 2013,12 although there are still ongoing projects to construct cables connecting Brazil to the United States.13

In 2004, the Brazilian Internet Steering Committee (CGI.br) launched the PTT Metro initiative to create internet exchange points (IXPs) across Brazil, and it has expanded ever since. As of March 2020, IXPs connected about 2,500 participants, including ISPs, telecommunications operators, content providers, content delivery networks, academic networks, and research, government, and business customers.14

A4 1.00-6.00 pts0-6 pts
Are there legal, regulatory, or economic obstacles that restrict the diversity of service providers? 5.005 6.006

There are no significant legal or economic barriers for companies competing in the ISP, mobile, or digital technology sectors. Concentration in the mobile market remains high, though the situation is improving: in 2021, three large private companies—Oi, Claro and Vivo (Telefônica Brasil)—represented nearly 60 percent of the country’s broadband market, down from almost 80 percent in 2017.1 As of May 2021, four large private companies—Vivo, TIM, Claro, and Oi—held around 98 percent of the mobile market.2 Such high market concentration could make it very difficult for smaller providers, such as Algar and Nextel, to compete in the mobile sector.3 Moreover, recent changes to the 1997 telecommunications law could pave the way for Oi to merge with another company, such as TIM.4

As of 2018, regional ISPs were responsible for almost 20 percent of the broadband market share in Brazil, but they face several growth barriers, particularly, high taxes.5 In 2018, some states started to reduce taxes applicable to local ISPs. The measure was poorly received by big telecommunications companies, which claimed that it threatened competition.6

Nonetheless, regional ISPs have grown at a fast rate, creating more competition in the broadband sector. A September 2019 survey showed that regional ISPs, composed of more than 14,000 providers, had captured a market share of 31.5 percent. The quality of their services was reportedly equal to or higher than those of the traditionally dominant companies. Moreover, regional providers have filled demand in small and medium-sized cities, while the licensing process has become easier. Consequently, these providers are market leaders in about 3,500 municipalities, compared to around 2,500 in 2017 (Brazil has a total of 5,570 municipalities).7 Anatel data from the third quarter of 2019 also revealed that, over the last year, there was a 34.59 percent rise in subscribers to small ISPs, which are increasingly strong in the countryside.8

However, organizations supporting the development of community networks in the country face challenges, particularly due to registration obstacles presented by excessive bureaucracy and the various spectrum-management policies in place.9

During the coverage period, government officials, including Bolsonaro, raised concerns about the Chinese telecommunications company Huawei providing 5G networks in the country, and considered banning the company from Brazil’s technology market. In February 2021, however, the rules for the 5G spectrum auction were approved without banning any Chinese companies (see A1).10

A5 1.00-4.00 pts0-4 pts
Do national regulatory bodies that oversee service providers and digital technology fail to operate in a free, fair, and independent manner? 3.003 4.004

Two regulatory agencies oversee Brazilian information and communications technologies (ICTs): the Brazilian Agency of Telecommunications (Anatel) and the Administrative Council for Economic Defense (CADE), an antitrust agency that is focused on reviewing mergers and anticompetitive practices in telecommunications markets.1

Anatel is administratively and financially independent, and not hierarchically subordinate to any government agency. Its decisions are only subject to judicial review in national courts. From the Ministry of Communications, Anatel has inherited the powers of granting, regulating, and supervising telecommunications in Brazil, as well as much of its technical expertise and other material assets.

Anatel has received some criticism for aligning with private interests in the past. For example, in 2016, Anatel supported policies establishing data limits on home-broadband internet, but backtracked following public criticism. A study from 2015 found that many of Anatel’s former regulators joined the telecommunications industry following their mandates.2 In recent years, however, the agency has made moves that counter that perception, simplifying licensing processes to allow for market competition by small, regional ISPs and appointing the first-ever career civil servant to the role of agency president, Leonardo Euler de Morais (see A4).3 Anatel’s role throughout 2022 will largely involve oversight of initiatives to expand connectivity and improve infrastructure throughout Brazil, as the agency drafts and implements new rules for the Telecommunications Services Universalization Fund and the 5G spectrum auction (see A1 and A2). 4

The government also created the Brazilian Internet Steering Committee (CGI.br) in 1995, a multistakeholder independent organization in charge of coordinating and integrating all internet service initiatives in Brazil, as well as promoting technical quality, innovation, and the dissemination of services. Provisions in the Civil Rights Framework for the Internet (Marco Civil) mandate that the government consult with CGI.br, and in various instances directly involve the committee, in policymaking and implementation of Marco Civil processes. However, a clear mechanism to do so has not yet been established.

CGI.br’s members are government officials and representatives from the private sector, civil society, and science and technology community.5 CGI.br’s contributions include comprehensive and reliable annual reports on internet use in Brazil, funding for internet governance–related research, and the promotion of conferences such as the annual Brazilian Internet Governance Forum. In June 2009, CGI.br published Principles for the Governance and Use of the Internet, which include online freedom, privacy, human rights, and net neutrality as a foundation for the Brazilian information society.6 Many of these principles were adopted into Brazilian law through the Marco Civil in 2014.

The participatory nature of CGI.br has briefly fallen under threat multiple times in the past few years. In April 2019, the government issued a decree abolishing several participatory spaces in the federal government that had been bringing civil society representatives into political decision-making.7 The decree initially raised concerns for its potential effect on CGI.br,8 but the government quickly announced that the decree would not apply to it.9 In 2017, there was an outcry after the government proposed a public consultation to advance significant changes in CGI.br’s representation and election mechanisms, without prior dialogue with the multistakeholder community. Some critics said the government had sought to increase its control over the body.10 Following these events, CGI.br itself proposed and held a broader public consultation with representatives of various sectors at the end of 2017 and continued to support a multistakeholder approach.11

B Limits on Content

B1 1.00-6.00 pts0-6 pts
Does the state block or filter, or compel service providers to block or filter, internet content, particularly material that is protected by international human rights standards? 5.005 6.006

There are no proven indications that Brazilian authorities filter messages or engage in widespread blocking online. Social networks, communication apps, and video-sharing platforms such as Facebook, Twitter, YouTube, Vimeo, and Vevo are for the most part freely accessible, and are widely used in Brazil.

However, Censored Planet, a research lab based at the University of Michigan, confirmed findings from an October 2019 report by the Open Observatory of Network Interference (OONI) that the website of Women on Waves, an organization that promotes reproductive rights (which are heavily restricted in Brazil: for example, abortion is outlawed in the country with few, extreme exceptions), was likely blocked by several networks in Brazil, including two of the main ISPs, Claro and Vivo.1 The Intercept reported in December 2019 that Women on Waves remained inaccessible on Claro, but was available on Vivo, which had also reportedly blocked the site intermittently.2 The site has since been reported to be accessible.

There have been no new judicial orders to block WhatsApp in recent years. There were four such cases in 2015 and 2016, in which telecommunications companies were asked to temporarily block access to the app after the company had failed to comply with information requests as part of criminal investigations. One order was suspended before the app was blocked,3 and three shutdowns were briefly implemented.4 WhatsApp argued that requests to turn over information were technically impossible due to its end-to-end encryption system (see B3, C4).5

B2 1.00-4.00 pts0-4 pts
Do state or nonstate actors employ legal, administrative, or other means to force publishers, content hosts, or digital platforms to delete content, particularly material that is protected by international human rights standards? 2.002 4.004

Lawsuits and legal threats have been frequently used, particularly by politicians and political authorities, to restrict the circulation of content criticizing them. Certain legal provisions criminalizing defamation and blasphemy and restricting speech around elections continue to put constraints on content online. Brazilian cybercrime legislation also limits certain online speech.1

The government regularly requests that social media platforms remove content, including in one instance during the coverage period of a request made through court orders. Between July 2020 and early 2021,2 the Supreme Court issued a series of orders requiring social media platforms like Twitter and Facebook to block the profiles of individuals implicated in a fake news inquiry.3 Facebook complied with the order in August 2020, placing a global block on 12 accounts. 4 Decisions by the Supreme Court have also kept content from being unduly removed. In January 2020, a Brazilian judge ordered Netflix to remove comedy group Porta dos Fundos’s Christmas special, which depicted Jesus Christ as a gay man and had been the subject of extensive criticism in Brazil. Netflix was permitted to keep the film on its platform after appealing to the Supreme Court (see B4).5

Between July and December 2020, Google received 671 government requests for content removal, most of them for defamation (224), electoral law (195), and privacy and security (125).6 Affected content included one allegedly defamatory blog post against a political candidate requested by a regional electoral court; one blog post that reported on the involvement of public officials in crimes against an elected official; and two blog posts that were removed for criticizing federal judges and their work. Facebook’s Transparency Report indicates that 11,824 pieces of content were restricted during this time, “in compliance with orders from local courts related to civil, criminal, and electoral proceedings.”7

Brazilian users have also had content restricted by platforms for content that contravenes platform policies. In February 2021, Youtube removed two channels belonging to Terça Livre, a popular pro-Bolsonaro news portal, for violating its terms of service. One of the offending videos alleged fraud in the United States’ 2020 presidential election. The channels were reinstated in March following an injunction by the Justice Court of São Paulo.8

Legal attempts by Brazilian politicians to hide critical social media posts, online news articles, or blog posts have been particularly common during past elections. The Brazilian Association of Investigative Journalism (Abraji), a free expression advocacy group, recorded at least 500 such attempts during the 2018 election campaign. President Bolsonaro was among the most active proponents of such judicial actions, filing at least 31 cases. In half of all cases, judges ruled in favor of removing the content; in some, requests also sought to prevent the future publication of certain content. Most requests cited defamation or violations of electoral laws. Some 70 percent of reported cases targeted content on Facebook.9

Also in the run-up to the 2018 general elections, several initiatives sought to combat the proliferation of offensive or false information online. A resolution on electoral propaganda issued in December 2017 was invoked to order the removal of content disclosing “facts that are known to be untrue” about candidates.10 In June 2018, the Supreme Electoral Court (TSE) issued its first decision on the matter and gave Facebook 48 hours to remove several posts linking presidential candidate Marina Silva to corruption investigations.11

B3 1.00-4.00 pts0-4 pts
Do restrictions on the internet and digital content lack transparency, proportionality to the stated aims, or an independent appeals process? 2.002 4.004

Brazil’s Marco Civil da Internet, the civil rights framework for the internet in Brazil known as the “Internet Constitution,” has clarified issues related to intermediary liability in order to protect freedom of expression, grant due process, and prevent prior censorship, establishing that service providers are only held liable for third-party content if they fail to remove content after a specific court order.1 Despite boasting some of the most comprehensive legislation on digital rights, Brazil’s Marco Civil was used as a key argument for disproportionate orders to block WhatsApp in 2015 and 2016. Drafted legislation has proposed to restrict the power of judges to order blockings of such magnitude,2 but no specific law had advanced as of May 2021.

In June 2020, after fast-tracked procedures, the Senate approved a draft “fake news bill” (PLS 2630/2020), which would sanction platforms that fail to provide transparency reports, label bots, or highlight corrections from independent fact-checkers (see C1, C2, C4, and C6).3 According to its text, internet platforms must apply “responsible verification” instead of moderating and removing content. Civil society groups sharply criticized lawmakers’ move to rush the bill through Senate procedures, as well as the bill itself for violating the Marco Civil’s provisions on intermediary liability.4 If the legislation is passed by the Chamber of Deputies, it must then be approved by Bolsonaro.

Intermediary liability issues have been settled through case law established by the High Court of Justice (STJ) and by statutory provisions enacted in the Marco Civil in 2014. In recent years, case law has been slowly built around a similar understanding, with the STJ ruling towards a judicial notice-and-takedown model.5 Exceptions were made for copyright infringement and the dissemination of nonconsensual sexual images or videos. In cases pertaining to the latter, the user’s notification alone is enough to make the intermediary liable, should it refuse to make the content unavailable in a short time.6

The constitutionality of Article 19 of the Marco Civil, however, which holds that service providers are liable for third-party content only if the content is not removed after a court order, may be subject to debate in 2021.7 The Supreme Court is expected to discuss the provision in connection with five admitted amicus curiae requests, including from Google and Twitter, after Facebook filed an appeal regarding the provision’s constitutionality in 2018.8 A lower court in the state of São Paulo had ruled that a fake profile of the plaintiff must be removed but declined to grant compensation for damages. An appeals court, however, judged that the social media platform was required to compensate the plaintiff.9 Several organizations that were denied permission to participate as amicus curiae, including InternetLab and CGI.br, met with court ministers to explain the importance of Article 19, leading the court to postpone the case and schedule a public hearing in March 2020, which was postponed due to the COVID-19 pandemic.10

Several draft laws were introduced in February 2021 to amend the current intermediary liability system following the attack on the United States Capitol and the banning of Terça Livre (see B2).11 The bills include provisions to prevent social media companies from labelling or removing content deemed harmful at risk of fines.12 In May 2021, President Bolsonaro announced that the government was preparing a draft decree to keep social media platforms from removing content for violating terms of service and other platform policies, instead requiring a court decision to restrict content.13 Bolsonaro issued the rules under a provisional measure in September 2021,14 after the coverage period, which the Supreme Court suspended later that month.15

An October STJ 2019 decision, regarding an appeal of a ruling that compelled e-commerce company Mercado Livre to remove advertisements from its platform, set an important precedent in intermediary liability. Mercado Livre argued that it was not responsible for the content of advertisements and could not remove them because the URLs were not provided. The STJ sided with Mercado Livre and stated that the URLs must be provided in removal requests, which should come from a private notification or a court order.16 The decision helps limit removal requests based only on broad complaints, such as claims that content violated someone’s honor.

Other cases on content removal were settled during the coverage period. In December 2020, Intervozes, a Brazilian freedom of expression nongovernmental organization (NGO), won a legal case against YouTube regarding videos they produced about media regulation and the representation of women and elderly people, that the platform had removed between 2013 and 2017 for alleged copyright violations.17 In a court order issued by the Justice of São Paulo, Google was ordered to pay Intervozes 50,000 reals ($9,500) for censorship and improperly removing their content.18

The WhatsApp blocking orders in 2015–16 resulted in two legal actions at the Constitutional Court; the Supreme Court held its first public hearings on the matter in June 2017.19 A claim for violation of constitutional rules (Arguição de Descumprimento de Preceito Fundamental) argues that the decisions to block WhatsApp were illegal because they breached the right to communication and disproportionately affected millions of consumers and internet users.20 On the other hand, a Direct Unconstitutionality Action (Ação Direta de Inconstitucionalidade), argues that the Marco Civil’s provisions used for the blockings are illegal under Brazilian constitutional law. Article 12 of the Marco Civil establishes sanctions for violations of Articles 10 and 11, which require application providers to disclose the content of private communications exclusively under judicial orders. Some critics argue that a “temporary suspension” would violate the same right to communication established by the Constitution. Several experts have argued that Article 12 of the Marco Civil does not allow for the entire blocking of sites and applications, but only concerns data collection and treatment activities mentioned in Article 11.21 The case resumed in May 2020 at the Supreme Court and focused on the encrypted nature of WhatsApp (see C4).

In February 2021, the Supreme Court adopted a landmark decision claiming that the “right to be forgotten” is incompatible with the constitution (Extraordinary Appeal No. 1,010,606).22 Prior to this ruling, in November 2016, the STJ had unanimously ruled that the “right to be forgotten” could not be imposed on search engines such as Google.23 However, in May 2018, it had reversed the decision when in a lawsuit against Google, Yahoo!, and Microsoft, it granted the “right to be forgotten” to a public prosecutor whose name appeared in search results associated with fraud allegations in a public tender.24 Following this, four bills to create a so-called “right to be forgotten” were proposed in Congress, by which search engines would be required to remove links to personal data upon requests by users.25

B4 1.00-4.00 pts0-4 pts
Do online journalists, commentators, and ordinary users practice self-censorship? 3.003 4.004

Threats and violence against online journalists and independent bloggers in certain areas of the country contribute to self-censorship (see C7).1 The climate of intimidation escalated during the polarized 2018 election campaign that saw President Bolsonaro’s rise to power, as both the leader and his followers launched online intimidation campaigns against critics.2

Bolsonaro has continued to intimidate and harass journalists since his election, with press freedom watchdog Reporters Without Borders (RSF) calling 2020 the most dangerous year for journalists in Brazil since 1990. A January 2021 report by the National Federation of Journalists (Fenaj) recorded 428 attacks—meaning physical assaults and verbal and legal harassment—against media outlets and journalists in 2020, more than double the number of attacks registered the previous year; Fenaj asserted that Bolsonaro was responsible for 175 of the offenses.3 RSF registered 580 attacks against the media over the year 2020, 469 (85.2 percent) of which came from Bolsonaro or his sons.4 Online outlets and journalists have increasingly self-censored due to this barrage of harassment and assaults. For example, in May 2020, when newspapers Folha de São Paulo and O Estado de S. Paulo decided to suspend their coverage at Palácio do Alvorada, the official presidential residency, because Bolsonaro supporters were constantly threatening journalists, calling them “garbage,” “rats,” and “communists.”5

The significant risk of being targeted with homophobic violence that LGBT+ people experience can increase self-censorship. A right-wing group firebombed the comedy group and production company Porta dos Fundos on December 24, 2019, in response to its Christmas special on Netflix, in which Jesus Christ was depicted as a gay man (see B2). Neither President Bolsonaro nor the minister of justice spoke out against the attack.6 Separately, Bolsonaro directed homophobic remarks at a reporter who questioned him in December 2019 about a corruption scheme involving his son.7

The recent escalation of online political violence against candidates who are Black, women, or gender-diverse has also been flagged by civil society as potentially diminishing the online engagement of individuals identifying with those groups during elections.8 Since 2018, the country’s elections have featured an increase in the use of technologies, which has been matched with significant levels of gender-based violence online.9

Among journalists, there was also an increased feeling of self-censorship around the use of Telegram, after the Intercept reported in June 2019 on a series of leaks of Telegram messages between a prosecutor and judge on the corruption case against former president Luiz Inácio Lula da Silva; the chats exposed the judge’s unethical conduct.10 The investigation ultimately led to the revelation that the Telegram accounts of many state officials had been hacked, and four people unconnected to the Intercept were arrested on hacking charges in July.11

B5 1.00-4.00 pts0-4 pts
Are online sources of information controlled or manipulated by the government or other powerful actors to advance a particular political interest? 1.001 4.004

Manipulated content is common in the Brazilian online environment, with a notable proliferation of fake news during the 2018 election campaign. The problem has deepened since then, as Bolsonaro and his allies have pushed out damaging COVID-19 disinformation and judicial reports have pointed to the existence of a fake news network allegedly organized by a criminal organization believed to include one of Bolsonaro’s sons. A former ally of Bolsonaro has come forward with claims that the president is directing funds to a so-called “office of hate,” in which employees attack Bolsonaro’s critics online.

Throughout the COVID-19 pandemic, Bolsonaro, his family, and his allies have shared significant amounts of false or harmful content that has hindered the public’s ability to obtain objective and accurate information, mostly about lockdowns in states and municipalities and unproven coronavirus treatments. In the first three months of 2021, one fact-checking organization found that Bolsonaro and his allies generated 83 percent of the most interacted-with Facebook posts supporting ineffective or unsubstantiated drugs for the treatment of COVID-19.1

In some instances, this content has been removed by platforms themselves, as it violates respective platforms’ policies. In March 2020, for instance, Twitter removed two posts from Bolsonaro that violated its policies on COVID-19, in which he called for social distancing to end and endorsed the unproven treatment hydroxychloroquine for people who had tested positive for the virus.2 More recently, in March 2021, Twitter removed a post from federal deputy Eduardo Bolsonaro that included photos of a suicide note from an individual alleged to have died by suicide due to COVID-19 restrictions, an anecdote which both the president and his son weaponized as an argument to end lockdowns.3 Much of this content has not been removed, however, and continues to impact online discourse. One fact-checking organization, Agência Lupa, found that at least 29 pieces of Bolsonaro’s content violating Facebook’s COVID-19 policies stayed on the site in the first two months of 2021.4

In a report released in May 2020 as part of an investigation into pro-Bolsonaro criticism of the Supreme Court on social media,5 the court said it had identified the existence of a criminal association dedicated to the spread of false news.6 In the investigation, the federal police named Carlos Bolsonaro, the president’s son, as an organizer of the scheme.7 In what may have come as a response to the investigation, President Bolsonaro dismissed federal police director Maurício Valeixo, which in turn prompted the resignation of Justice Minister Sergio Moro in protest of what he called Bolsonaro’s inappropriate political interference in police operations.8 Separately, in July 2020, Facebook removed dozens of fake accounts linked to the Bolsonaro family, saying the accounts violated the platform’s policies, and that some promoted hate speech and political attacks. In all, 35 Facebook accounts, 14 pages, and 38 Instagram accounts were removed.9

Separately, in December 2019, a former ally of the president, Joice Hasselmann, accused the administration of having an "office of hate.” Equipped by a so-called "digital militia" comprised of publicly funded civil servants, the office reportedly serves as a center from which to attack enemies of the president online, including politicians and journalists. Bolsonaro has denied the existence of such an office.10

Social media was a prominent playing field for political campaigning during the 2018 elections, as new rules allowed sponsored political advertisement online.11 Despite efforts to prevent and curtail the spread of fake news,12 disinformation proliferated on various platforms, with the Organization of American States (OAS) observer mission calling the rate of disinformation “unprecedented” and mainly linked to the use of private communication platforms, notably WhatsApp.13 The app among other things was frequently misused to send bulk-messages to multiple numbers obtained through scraping software.14 A study analyzing 110 open groups on WhatsApp detected evidence of total or partial automation in the sharing of messages and images.15 Election-related inauthentic coordinated behavior on Facebook was removed in December 2020 ahead of regional and mayoral elections in five municipalities, though the networks had close to no following at the time of removal.16

In October 2018, Folha de S. Paulo reported that Bolsonaro was benefiting from a network of big businesses using undeclared funds to disseminate pro-Bolsonaro messages via WhatsApp.17 Bolsonaro denied the accusations, qualifying the bulk messaging as “voluntary support,” 18 though the TSE began an investigation into the network.19 In June 2019, the team of Bolsonaro’s opponent, Fernando Haddad, renewed demands to investigate alleged illegal campaigning after evidence emerged that suggested that Brazilian companies had contracted a Spanish marketing agency to promote political messages in favor of Bolsonaro on WhatsApp.20 Although there is no hard evidence of Bolsonaro’s involvement, undeclared donations are considered illegal according to Brazilian electoral law.

Candidates and elected authorities also spread disinformation online, heightening tensions around and skepticism of the election’s results. Bolsonaro’s son Flávio, who was elected a senator in 2018, alleged widespread fraud in the electronic voting system that would benefit Fernando Haddad in the first round. His brother Eduardo, also a senator, supported this claim even after the TSE debunked it.21 The president repeated similar allegations at an event in the United States in March 2020, which was countered by a member of the TSE.22

In July 2019, Congress established a committee to investigate the use of fake news in the 2018 election campaign.23 It had been announced in May that records of meetings held by a committee established under the TSE in 2017 to monitor alleged fake news on social media ahead of the election, the Consultative Council on Internet and Elections,24 would not be released until 2023, after the 2022 election cycle. The secrecy was decreed in a November 2018 ordinance signed by the then secretary-general of the Presidency of the Superior Electoral Court.25

B6 1.00-3.00 pts0-3 pts
Are there economic or regulatory constraints that negatively affect users’ ability to publish content online? 2.002 3.003

Regulatory and economic constraints are relatively minor in Brazil.

Brazil lacks a regulatory framework around the use of public funds for state advertisement in media outlets, including online media. Discriminatory use of state advertisement for political control remains a concern at the federal and local levels in Brazil.1 In 2017, the institution responsible for monitoring information about state advertisement was closed.2

In August 2020, the Intercept reported that the Bolsonaro administration paid Google more than 11 million reals ($2.08 million) between May 2019 and July 2020 to distribute progovernment ads.3 Data from the presidency's communication secretariat, obtained through freedom of information requests by news outlet O Globo, show that between January 2017 and July 2019 over 28,000 advertisements by state-run oil and electricity companies Petrobras and Eletrobras were aired on YouTube channels, including that of blogger Allan dos Santos, a Bolsonaro supporter who is under investigation in a Supreme Court inquiry. Another database revealed that 11 websites and channels hosted over 390,000 ads from the government between June and August 2019.4

During his 2018 electoral campaign, Bolsonaro threatened to cut off state advertisements from a newspaper that had been reporting on irregularities in his campaign operations.5 After taking office, he said that the government would cut advertisement to media allegedly as a strategy to guarantee independence. These declarations came in conjunction with criticism against the press for its “partiality.”6

While historically much of the state advertising budget has been directed to television, the Bolsonaro administration’s priority has increasingly shifted to online platforms. In February 2019, according to Folha de S. Paulo, television channels aligned with Bolsonaro’s government complained about the lack of state advertisements,7 though quarterly data from April 2019 showed a 63 percent increase in advertisement expenditures, compared to the year before.8

Since the approval of the Marco Civil, net neutrality has been incorporated into Brazilian law. Enacted in May 2016, a new decree regulating the Marco Civil solidified the rules that prohibit the discrimination or degradation of traffic for commercial purposes, while permitting it for public emergencies.9 Any notice of violation of said principle by companies may be investigated and sanctioned.10 However, zero-rating is still a common practice among mobile internet companies.11

B7 1.00-4.00 pts0-4 pts
Does the online information landscape lack diversity and reliability? 3.003 4.004

Brazil’s online sphere is vibrant, featuring many frequently updated websites and social media pages that examine issues of the day from a variety of perspectives. However, many users have limited access to information beyond social media platforms given the widespread practice of zero-rating agreements for mobile plans, and some regions lack robust local coverage. Some popular right-wing websites are subjects of the Supreme Court investigation of the alleged criminal network spreading false news, involving Bolsonaro’s son.

Many Brazilians are dependent on online sources of information, mostly via social networks and chats. Social media platforms have become important instruments for citizen journalists and others to access information, defend civil rights, and express political opinions. Brazilians can read news from national and international sources without government restriction.

A December 2019 survey by the Chamber of Deputies and the Senate identified WhatsApp as the main source of information for a large part of the population. Of the 2,400 people interviewed by phone, 79 percent said they “always” received news from the platform. Other popular online news sources included YouTube, Facebook, news sites, and Instagram.1 As of August 2021, the most visited YouTube page from Brazil, KondZilla—created by a funk music producer from Rio de Janeiro—had more than 64 million subscribers.2 The YouTube channel Spartakus, which focuses largely on pop culture, discusses topics like white privilege, meritocracy, and LGBT+ rights,3 and the Instagram account of Ana Paula Xongani, with over 200,000 followers, covers themes like Black entrepreneurship and Black feminism.4

However, zero-rating agreements for mobile internet plans prevent many individuals from accessing information outside of social media platforms.5 According to a recent study mapping news producers in Brazil, some areas of the country have limited or no local news coverage, especially in the north and northeastern regions, which have comparably large Indigenous and Afro-Brazilian populations.6 Digital news initiatives have succeeded in slowly reducing the size of these news deserts in recent years, however, even as print media outlets have been lessening. By February 2020, around 62 percent of Brazilian municipalities (covering 37 million people) did not have any local news media outlets, either online or offline. Some 19 percent of municipalities had only one or two outlets.7

In recent years, new online, right-wing media outlets have emerged, including groups focused on “alternative information” like Folha Política or Mídia Sem Máscara. Many of these outlets are being investigated by a Supreme Court inquiry (see B5), and one of the most popular right-wing outlets, Allan Dos Santos’s Terça Livre, was banned by YouTube in February 2021 (see B2).8 Brazil’s vibrant online sphere continues to provide counterparts to these right-wing narratives, for which YouTuber and influencer Felipe Neto has received international attention, 42 million YouTube subscribers, a combined 26 million followers on Instagram and Twitter, and—the only Brazilian included in the list besides Bolsonaro—a spot in Time’s “100 Most Influential People of 2020” for his vocal criticism of the president on social media.

B8 1.00-6.00 pts0-6 pts
Do conditions impede users’ ability to mobilize, form communities, and campaign, particularly on political and social issues? 6.006 6.006

Social media platforms such as Facebook and Twitter—and more recently closed-messaging platforms such as WhatsApp—play a central role in civic activism in Brazil. However, the use of these platforms to mobilize around political causes is complicated by disinformation campaigns.

Between October and December 2020, for instance, think tank Instituto Igarapé identified 114 threats to civic space in Brazil, 32 of which were disinformation campaigns. A number of these were related to COVID-19 and the 2020 municipal elections.1

Citizens can engage with lawmakers online to express opinions and shape the design and implementation of legislation.2

C Violations of User Rights

C1 1.00-6.00 pts0-6 pts
Do the constitution or other laws fail to protect rights such as freedom of expression, access to information, and press freedom, including on the internet, and are they enforced by a judiciary that lacks independence? 4.004 6.006

The Brazilian constitution forbids anonymity but protects freedom of the press and freedom of speech, including cultural and religious expression.1 The groundbreaking Marco Civil, a framework for internet user rights signed into law in 2014,2 establishes the right to freedom of expression online, offers detailed privacy protections pertaining to personal data, guarantees net neutrality, and promises to uphold the participatory nature of the internet. However, constitutional protections and those in the Marco Civil are undermined by defamation and other laws that can be misused to criminalize legitimate speech. Free-speech advocates have expressed concerns about potentially restrictive provisions in a draft law meant to regulate “fake news,” passed by the Senate in June 2020 and awaiting a 2021 congressional vote and approval by Bolsonaro. Meanwhile, in early 2020, Bolsonaro unsuccessfully attempted to suspend freedom-of-information requests, citing the COVID-19 pandemic.

A decree regulating the Marco Civil was enacted in 2016, containing specific rules regarding net neutrality and data protection.3 A case about the constitutionality of Article 19 of the Marco Civil—which relates to intermediary liability and, according to analysts, clashes with consumer protection rules—was awaiting discussion by the Supreme Court at the end of the coverage period (see C3).4

Several legal provisions, such as laws criminalizing defamation and blasphemy and a November 2019 amendment to the electoral code criminalizing “slanderous denunciation,” continue to threaten users’ rights online (see C2).5 Multiple attempts have been made to change and weaken legal guarantees on freedom of expression, privacy, and access to the internet. To respond to and resist multiple draft bills, digital rights–focused civil society organizations created a coalition in 2016 that has been actively monitoring and engaging with Congress on these issues.6

Approved by the Senate in June 2020, a draft bill (PLS 2630/2020) aims to tackle the problem of fake news. However, critics claim it conflicts with the Marco Civil and the constitutional protection of freedom of expression; it would amend the former, along with the General Data Protection Law (LGPD), and consumer protection and election laws. Civil society organizations have openly denounced the bill, claiming it would enhance mechanisms of control of individuals online and might create chilling effects for platforms (see B3, C2, and C4).7

Freedom of expression has also been undermined by President Bolsonaro. For example, in July 2019 he verbally attacked and threatened jail time for journalist Glenn Greenwald, who had investigated the corruption scheme known as Lava Jato and the improper relationship between former judge and now-former justice minister Sérgio Moro and prosecutors. In response, Edison Lanza, Special Rapporteur on Freedom of Expression for the OAS’s Inter-American Commission on Human Rights (IACHR), commented that "Brazil’s president unfortunately seems to have forgotten about the Constitution and international treaties on freedom of expression of which Brazil is a signatory."8

In March 2020, Bolsonaro issued a provisional measure that suspended deadlines for public agencies to respond to information requests, prohibited appeals for denials to such requests, and stipulated that pending requests be presented again after the COVID-19 pandemic passed. The Supreme Court suspended the measure, reasoning that it would make the exception—confidentiality of public information—into the general standard.9

Impunity for crimes against users, such as harassment and threats, persists.10 Most investigations and prosecutions only target the direct perpetrators of crimes, allowing planners and other accomplices to escape justice.11 In September 2018, communicators were included in the human rights defenders’ protection program together with environmentalists.12 The measure was welcomed by press freedom groups, though they deemed it insufficient to address structural violence against journalists.13

C2 1.00-4.00 pts0-4 pts
Are there laws that assign criminal penalties or civil liability for online activities, particularly those that are protected under international human rights standards? 2.002 4.004

Brazil has continued to see instances of local officials suing bloggers and online journalists for defamation, a crime punishable by six months to two years in prison or a fine according to the penal code.1 In June 2019, the government enacted a reform to the electoral code that provides for a prison sentence between two and eight years for anyone making false accusations about a political candidate for the purpose of affecting his or her candidacy; though President Bolsonaro vetoed a provision that would have equally punished anyone disseminating false accusations via any means.2 That August, however, Congress rejected his veto3 and the reform was enacted by Bolsonaro that November with the provision intact.4 Lawmakers have proposed extending criminal penalties for honor offenses online. 5 In March 2021, Congress overturned presidential vetoes to modifications of the Anti-Crime Law that barred tripling the penalties for crimes against honor carried out on social networks. 6 The Senate postponed their review of the vetoes after Congress overturned them.7

Although people are rarely charged or imprisoned for racist or discriminatory speech, Brazilian law establishes penalties ranging from two to five years in prison for practicing or inciting discrimination based on race, ethnicity, or religion in the media or in other publications.8 The criminal code further outlines punishment for vilifying or mocking religion, with penalties ranging from one month to one year in prison, although whether these penalties have been applied to online speech is unclear.

Brazilian cybercrime law criminalizes breaches of digital privacy such as computer intrusion, the “installation of vulnerabilities,” and editing, obtaining, or deleting information—including credit card numbers—without authorization. The distribution, sale, production, or offer of programs or devices meant to facilitate these actions, or to interrupt ICT services, are also categorized as crimes.9

The National Security Act, a law enacted during the military dictatorship from 1964–85 that criminalizes harming or endangering the heads of the branches of government, has increasingly been used by the president, legislature, and judiciary to open investigations into critical online expression since Bolsonaro came to power (see C3).10 A law that would repeal and replace the National Security Act, Bill 6764/02, was approved by the Chamber of Deputies in May 2021, with little enthusiasm from digital rights activists.11 The new bill is also seen as a threat to free expression, assembly, and association, as it includes vaguely worded provisions criminalizing “mass misleading communication” and the dissemination of “secret documents” to foreign governments; it lacks whistleblower protections for the sake of investigative journalists.12

The draft “fake news bill” (PLS 2630/2020), approved by the Senate in June 2020, defines fake news as “content, in part or in whole, unequivocally false or misleading, verifiable, placed out of context, manipulated or forged, with the potential to cause individual or collective harm,” exempting humor and parody. The bill would also alter money laundering and criminal organization laws, so that those who use inauthentic accounts or botnets would see increased penalties if they are found to be members of such an organization.13 Moreover, those who generate or circulate content that undermines the undefined “social peace” or “economic order” would face one to five years’ imprisonment, while the use of “manipulated” content to “ridicule” political candidates would be punishable by a maximum fine of 10 million reals ($1.9 million), paid to the affected candidate by the candidate determined to have “benefited” from so-called ridicule.14

As of July 2020, 77 draft bills had been appended to the draft “fake news bill” and were similarly sitting with the Chamber of Deputies as of the end of the coverage period.15 For instance, draft bill 2284/2020, proposed in April 2020 by Alexandre Frota, would require social media users to register with a photo; existing accounts that went unidentified after six months would be blocked.16

Concerns have also been raised about proposed antiterrorist legislation; at least 10 bills were pending approval to amend existing law by the end of the coverage period.17 Two draft bills would notably criminalize the incitement of a broadly defined concept of terrorism, with penalties of up to eight years’ imprisonment.18 One of them specifically mentions online media.

C3 1.00-6.00 pts0-6 pts
Are individuals penalized for online activities, particularly those that are protected under international human rights standards? 3.003 6.006

Score Change: The score declined from 4 to 3 because of a growing pattern of criminal investigations under the National Security Act initiated against online critics of President Bolsonaro and his government.

Online journalists and bloggers reporting on corruption or controversial topics frequently receive legal threats, including for alleged defamation. The National Security Act has been increasingly used to open investigations into Bolsonaro’s critics during his presidency.

Reporters for online outlets face brief detentions, house arrest, and criminal charges in connection to defamation suits in retaliation for their digital activities. Brazilian journalist Arimatéia Azevedo was held under house arrest from June to November 2020 due to extortion allegations from a local doctor, following an article Azevedo published about an alleged malpractice suit on the online news outlet he founded, Portal AZ. In a complaint filed in February 2020, the doctor claimed that Azevedo had threatened to publish more about the case unless he was paid off by the complainant. Azevedo was detained in police facilities and prison for five days in June and three in July. The arrest order further required Portal AZ to refrain from publishing content deemed offensive about the complainant and the police unit and officers involved in the case. A Supreme Court judge overturned the gag order in October, citing its potential to hinder the publication of news pertaining to public interest and the right to information.1 The Superior Court of Justice overturned Azevedo’s house arrest in November, stating that the extreme degree of custody was unwarranted considering the nonviolent nature of the alleged crime.2

On February 23, 2021, São Paulo authorities issued an arrest warrant for sports blogger Paulo Cezar de Andrade Prado to enforce a five-month prison sentence that had been handed to him in March 2018, when he was first convicted. The conviction was based on a criminal defamation suit filed against Prado in 2016 by business owner Paulo Sérgio Menezes Garcia for an article Prado had published about political donations made during the 2014 and 2016 elections by the claimant and his company. Prado’s lawyer had filed a new lawsuit to have the case reviewed in August 2020, which had not yet been ruled on when the warrant was announced. The sports blogger had not been taken into custody as of March 2021.3

On June 16, 2020, journalist and author J.P Cuenca posted a satirical tweet denouncing both Bolsonaro and the Universal Church of the Kingdom of God. Within six months, at least 130 pastors from the church had sued him for “moral injury.”4 Legal experts have highlighted this form of journalist targeting as an increasingly popular tactic to dissuade critical content, as claimants have become emboldened by Bolsonaro’s anti-press rhetoric.5 In November 2020, a judge ordered Cuenca to pay 10,000 reals ($1,900) to one of the pastors because of the Twitter post.6

During the coverage period, and Bolsonaro’s time in office generally, the weaponization of the National Security Act to silence political criticism and opposition online has spiked, much to the concern of civil society groups (see C2). 7 Federal police conducted an average of 11 investigations under the law per year before Bolsonaro was president; they have conducted more than 80 since. In the first 45 days of 2021 alone, they reportedly conducted more than 10 investigations under the law,8 which has been used particularly frequently to open investigations against critics of Bolsonaro’s management of the COVID-19 pandemic, including journalists,9 activists,10 and opposition leaders.11 In March 2021, for instance, famous YouTuber, Felipe Neto, had the National Security Law invoked against him after he called the president “genocidal” in a YouTube broadcast. The law was used to compel Neto to give testimony about the alleged offense, but the case was dismissed two days later due to public disapproval.

In June and July 2020, federal police opened investigations into three different online users under the National Security Law at the behest of Minister of Justice André Mendonça. One of the cases involved Renato Aroeira, a political cartoonist for news site Brasil 247, who published a cartoon in June 2020 that depicted Bolsonaro turning a red cross into a swastika with paint. Ricardo Noblat, a national political news journalist and blogger, posted the cartoon on Twitter later that day. Mendonça accused Noblat and Aroeira of violating Article 26 of the National Security Law, which criminalizes slander of specific government officials, punishable with prison sentences of up to four years. Opinion writer Helio Schwartsman also had an investigation opened into his online activities at the request of Mendonça under Article 26 of the National Security Law. He had published a column on July 7 for online news outlet Folha de S.Paulo titled, “Why I hope Bolsonaro dies,” after the president was diagnosed with COVID-19. The investigation was temporarily suspended by the Superior Court of Justice.12

In March 2021, pro-Bolsonaro lawmaker Daniel Silveira was granted house arrest after spending almost a month in prison due to comments he made in a video published on YouTube that a supreme court minister claimed was illegal under the National Security Act.13 In the video, Silveira called for the Supreme Court to be shut down, stated that its judges deserved “a thrashing,” and defended the country's 1964–85 military dictatorship.14 Additionally, in March 2021, television host Danilo Gentili was the subject of a criminal complaint after suggesting on Twitter that members of the public should enter the National Congress and punch deputies discussing a proposed constitutional amendment for parliamentary immunity.15

C4 1.00-4.00 pts0-4 pts
Does the government place restrictions on anonymous communication or encryption? 2.002 4.004

The constitution explicitly forbids anonymity online.1 Although in practice anonymous speech online is common, some judges have occasionally referred to the constitution as a basis for limiting it. Other judges have upheld anonymous speech on the grounds that it is important for free expression and privacy, ruling that anonymous posts are protected so long as they can be technically traced through internet protocol (IP) addresses. The STJ has held that identification through IP address is a “reasonably effective means for identification” and corresponds to an “average diligence” expected from internet providers.2

Several legal provisions also restrict online anonymity in Brazil. Real-name registration is required for individuals or legal entities in order to purchase mobile phones or to access private internet connections, although the use of pseudonyms in discussion forums across the web is common. Lawmakers have pushed for restrictions on anonymity regarding public internet access points, such as local-area network (LAN) houses, in order to prevent cybercrimes. Legislation of this kind already exists in states such as São Paulo, 3 while other proposed bills that seek to oblige users to identify themselves when accessing the internet or social media remain under consideration.4

There are no restrictions on the use of virtual private networks (VPNs) and Tor browsers in Brazil. The government is also not entitled to demand official documents. However, there are bills that seek to require personal documents (registration of individuals) to access internet applications. The Fake News Advisory Council of the Electoral Court and Parliamentary Committee of Inquiry have promoted the narrative that these measures are necessary to identify people, which scholars have denounced, defending the right to anonymity.5

Amid public discussions about fake news and the prominent Supreme Court investigation into government-affiliated disinformation networks, lawmakers have drafted legislation that would require mandatory identification of users. The June 2020 fake news bill (PLS 2630/2020) would enable social networks and private messaging apps to identify each user through verification of their national identity cards. Companies would be able to demand the document in order to identify suspected bots, or upon observing suspected identity theft or other inauthentic behavior. Private messaging apps are also required to link users to a cell phone number and to delete accounts if the number is deregistered.6

Brazilian law does not place restrictions on encryption. The General Data Protection Law (LGPD) strengthens the adoption of encryption policies,7 and some legal analysts have interpreted recent Supreme Court decisions in defense of privacy and data protection as suggestive of a judiciary favorable to protecting encryption.8 However, the fake news bill would require private messaging services to store for three months the traceability data of messages that go viral, defined as those forwarded by more than five users and that reach at least 1,000 accounts.9 A draft bill proposed in 2018 would have obliged internet companies to provide encryption keys to law enforcement authorities, though it had not passed by the end of the coverage period.10

Law enforcement authorities have also increased pressure to access encrypted content for criminal investigations. Court orders to block the encrypted communications app WhatsApp in 2015 and 2016 were questioned at the Supreme Court, which held a public hearing on encryption in 2017.11 Law enforcement representatives stated that the company should cooperate in criminal investigations, even if this would imply changing the app’s architecture or encryption protocols. On different occasions, authorities have suggested government hacking as an option for access to encrypted content.

The WhatsApp case continued in May 2020,12 when Justices Rosa Weber and Edson Fachin ruled out any interpretation of the Marco Civil that allows companies to provide access to the content of encrypted messages from end-to-end WhatsApp through a court order.13 According to the justices, the law only authorizes the provision of information not protected by confidentiality, that is, metadata, regarding the user and the use of the device. The justices also considered any judicial determination that could weaken the cryptographic protection of internet applications to be unfeasible. For Justice Fachin, the protection of privacy was not just an individual protection, but the instrumental guarantee of the right to freedom of expression.14 In May 2020, Justice Alexandre de Moraes asked to review the case.15 There is no clear deadline for it to be resumed.

C5 1.00-6.00 pts0-6 pts
Does state surveillance of internet activities infringe on users’ right to privacy? 3.003 6.006

Brazil has a history of improper surveillance of private communications, particularly targeting social movements and activists. Civil society organizations routinely denounce the government’s lack of transparency surrounding its surveillance operations, operations that are frequently justified as a tool to combat crime.1

Since the beginning of Bolsonaro’s presidency, and especially in the first half of 2021, Brazil has seen an increase in social media monitoring of activists and members of the political opposition.2 A December 2020 report by a communications company hired by the Ministry of Economy was leaked that unveiled the names, email addresses, and political positions of journalists and influencers deemed government detractors, as well as strategies to neutralize them.3

Reports that the Brazilian Information Agency constantly monitors social networks have also emerged. In June 2020, the Ministry of Justice’s Secretariat of Integrated Operations (SEOPI) allegedly produced a report on “Actions by Antifa Groups and Anti-Fascist Policemen.” The secretive unit had monitored 579 federal and security officials and three university professors, all known to be critical of Bolsonaro’s government, and further compiled dossiers consisting of names, photos, and social media accounts. The unit is headed by a delegate from the Civil Police of the Federal District and has an Intelligence Directorate. SEOPI, classified as part of the country’s intelligence system, shared the report with bodies including the Brazilian Intelligence Agency, the presidency, and the National Public Security Force.4

Separately, in April 2019, the newspaper Estado de São Paulo reported that the government had hired a firm to monitor conversations about Bolsonaro on social networks. Services included identifying possible viral posts that would hurt the government and monitoring hashtags and commonly used words. How the data was being used remains unclear.5

Despite the existence of several safeguards in the telephone interception law (n. 9.296/1996), there are concerns regarding their judicial interpretation and implementation.6 Infiltration through online platforms and political monitoring of social networks are common practices and there is still no legislation regulating online personal data gathering by law enforcement authorities and intelligence agencies.7

An October 2019 presidential decree issued in the absence of debate or public consultation established a Citizen’s Basic Register, which consists of a centralized database of citizens’ data held by federal bodies, ranging from health records to biometric information. Permission from Brazilians to share their data among various federal agencies is not required, nor are they able to track their information. No limits were imposed on the sharing of citizens’ health information, and the Central Data Governance Committee, which regulates the register, lacks representatives from civil society, academia, and businesses. Critics say the register threatens privacy rights, in conjunction with existing surveillance technologies.8

Brazil has no regulation on the use of malware for lawful surveillance practices. However, leaks from Hacking Team showed that the Brazilian federal police was authorized to use its software to infect 17 targeted phones.9 In a 2018 report by Citizen Lab, a Canadian internet watchdog, Brazil is listed as one of 45 countries worldwide in which devices were likely breached by Pegasus, a targeted spyware software developed by the NSO Group, an Israeli technology firm. Pegasus is known to be used by governments to spy on journalists, human rights defenders, and the political opposition, though whether the Brazilian government is a Pegasus client is unclear. In May 2021, media outlet UOL reported on interference from Councilman Carlos Bolsonaro, the president’s son, in the government’s bidding process for Pegasus spyware. UOL sources reported that the councilman sought to reduce the military’s intelligence powers by excluding relevant bodies from the negotiations, instead expanding surveillance capabilities of the Ministry of Justice and the federal police, over which he holds significant influence.10

C6 1.00-6.00 pts0-6 pts
Does monitoring and collection of user data by service providers and other technology companies infringe on users’ right to privacy? 4.004 6.006

The Marco Civil imposes obligations on internet connection providers to keep records of their users’ connection logs for 12 months, and for application providers to keep records of access for six months.1

Regulations decreed in May 2016 clarified security measures to be taken by providers regarding log-keeping, including how authorities must request users’ data from intermediaries; the level of technical security said intermediaries must adopt to safeguard logs from being leaked; and other identification and security procedures to be undertaken by the professionals responsible for handling said data, such as the obligation for individual identification and the use of two-factor authentication.2

Other retention measures are present in the Brazilian legal framework beyond the Marco Civil. Law 12.850 on organized crime obliges telecommunications companies to retain data regarding the origin and destination of phone calls for five years.3 Anatel resolutions also establish obligations on the retention of metadata by landline and mobile service providers.4

Digital-rights advocacy organizations have largely supported new data protection legislation. After significant delay, the LGPD was finally approved by Congress in August 2020. It has been enforced since late 2020, over two years since it was initially approved by the Senate, though sanctions did not go into effect until August 2021.5 The National Data Protection Authority (ANPD), the body in charge of enforcing the law, published its biannual regulatory agenda6 and bylaws7 during the early months of 2021.

In May 2020, the Supreme Court struck down a provisional executive order that had been declared at the beginning of the COVID-19 pandemic, in April 2020, to require telecommunications companies to share personal data with a government agency, the Brazilian Institute of Geography and Statistics (IBGE). The data of more than 200 million citizens would have been affected under the decree, which the government claimed was to allow them to conduct interviews with citizens over the phone about the pandemic. The ruling has been interpreted by civil society as establishing data protection as a fundamental right. At least 14 of Brazil’s 27 state governments and the federal government more broadly had reportedly attempted to capture personal data during the pandemic at the time of the ruling, with some partnering with third party groups to do so.8 In March 2020, the city of Rio de Janeiro signed an agreement with TIM that would permit the provider to transmit users’ geolocation data to local authorities in order to monitor compliance with coronavirus isolation rules. TIM stated that identifying information would be removed in line with data protection rights.9

The draft fake news bill would require private messaging applications to retain information about communications that have been “massively forwarded” for the purpose of potential criminal investigation or prosecution.10 Draft bill 2418/19, introduced in April 2019, would oblige ISPs to monitor user data for potential terrorist activities and heinous crimes, and share relevant information with the authorities. In addition, intelligence and security agents would be able to access phone and internet networks to analyze information about terrorist and potential attacks, with authorization from a military court.11 The bill had not moved forward by the end of the coverage period.12

In December 2019, the Supreme Court ruled that internet application providers must store users’ logical port data, which can be used to identify them, and provide such data if there is a court order. However, providers will be able to submit evidence on the technical feasibility of this requirement.13

C7 1.00-5.00 pts0-5 pts
Are individuals subject to extralegal intimidation or physical violence by state authorities or any other actor in relation to their online activities? 1.001 5.005

Score Change: The score improved from 0 to 1 because, though violence and harassment of journalists remains a major threat, murders in suspected retaliation for online activities were not reported during the coverage period.

Threats, intimidation, and violence against online journalists and bloggers constitute a major restriction on freedom of expression and human rights in Brazil. In recent years, hostility against journalists and the media has escalated, amid deepening political polarization.1

In March 2021, the headquarters of weekly print newspaper and news website, Folha da Região, which is also the home of founder and editor José Antônio Arantes, was targeted with an arson attack by an unidentified individual. Arantes also hosts a daily radio show, in part through the paper’s YouTube channel and Facebook page. Though the attacker lit the fire while Arantes and his family were inside, they all made it out safely. Arantes had been receiving insults on the newspaper and radio show’s social media accounts prior to the attack in response to his support of measures containing the spread of COVID-19.2

On October 21, 2020, two men physically entered the home of, assaulted, and threatened Alves Júnior, who runs the online portal “Portal Santana / Itarema,” where he covers local politics and general news. Júnior identified the assailants as linked to a local official; one, the official’s husband, explicitly accused Júnior of talking about his wife on the internet during the attack. Júnior believes the attack was in response to a post he had published on the portal that day about ethical concerns regarding the official in question.3

Murders in potential retaliation for online activities have occurred in the past, before the coverage period. In May 2020, Leonardo Pinheiro—owner of the Facebook page A Voz Araruamense, which reported locally from the city of Araruama—was killed by an unknown gunman. Pinheiro had announced his opposition candidacy for city council and was interviewing sources for a story when he was killed.4 In June 2019, in the state of Rio de Janeiro, Romário Barros, the owner and journalist of the news site Lei Seca Maricá, was shot and killed by an unknown man. Because nothing was stolen, it was suspected that the killing was deliberate. Lei Seca Maricá reported on local news, including crime and politics.5

Intimidation and harassment also remain a serious concern in Brazil. In April 2021, Diego Santos, host of daily news show and Facebook broadcast “Verdade no Ar,” received an envelope in his mailbox containing a death threat and two bullets. Santos covers issues of crime, corruption, and policing on his show. 6 In July 2019, United Nation (UN) experts expressed concern about death threats against a journalist for the Intercept Brazil, Glenn Greenwald, and his family (including his husband, Brazilian lawmaker David Miranda), following his publication of information regarding wrongdoings by the current minister of justice when he was responsible for the case against former president Luiz Inácio Lula da Silva, who was imprisoned in 2018.7

Bolsonaro and his supporters use social media to harass journalists, including in one instance after the coverage period. In July 2021, journalist for online outlet UOL Juliana Dal Piva received a threatening text from President Bolsonaro’s personal lawyer, Frederick Wassef, in which he called her an enemy of the homeland, among other insults. Though the message did not mention a specific piece of Dal Piva’s work, UOL’s podcast had published an episode that day containing parts of an interview she had conducted with Wassef for reports the website published on alleged corruption involving Bolsonaro and his family.8

Journalists who are women in Brazil face heightened levels of gender-based violence online. In February 2020, for example, while providing testimony to Congress on fake news, the former employee of a digital marketing agency, Hans River do Nascimento, insulted Campos Mello by claiming she was willing to offer sex in exchange for information. His statement led to numerous sexist attacks against her over Facebook and Twitter, including from congressman Eduardo Bolsonaro, President Bolsonaro’s son, and two other lawmakers. Bolsonaro himself echoed Nascimento during a speech, insinuating that she was willing to offer sex in exchange for derogatory material about him.9 In March 2021, a court ordered Bolsonaro to pay her 20,000 reals ($3,800) in damages.10

C8 1.00-3.00 pts0-3 pts
Are websites, governmental and private entities, service providers, or individual users subject to widespread hacking and other forms of cyberattack? 1.001 3.003

Cyberattacks are frequent and often target political advocacy groups and journalists, along with government institutions, public utilities providers, and businesses.

The websites of investigative news outlets and rights organizations suffered sustained distributed denial-of-service (DDoS) attacks during the coverage period. In March and April 2021, online women’s rights news portal Portal Catarinas suffered a series of DDoS attacks that rendered the site inaccessible for several hours a day over the course of a week. On the day the attacks began, Portal Catarinas had posted a critical article about proposed legislation in the Senate to offer rape survivors money to forego an abortion. 1 The website of investigative news outlet and human rights organization Repórter Brasil was targeted by DDoS attacks from unidentified users for nearly a week in January 2021. The attacks forced the outlet offline multiple times, during which their general contact email also received two anonymous messages threatening continued attacks unless the outlet removed all reporting from 2003 to 2005. Their reporting from that time covered labor conditions, human trafficking, gold mining, and a hydroelectric plant.2

Cyberattacks against government institutions also occurred during the coverage period, specifically targeting the STJ and the TSE in November 2020.3 The STJ was the target of a ransomware attack that resulted in important files being hijacked and the court´s activities being interrupted for a few days. In the weeks preceding the November 2020 municipal elections, the TSE’s systems were the target of more than one attempted attack in what was believed to be an attempt to discredit the institution.4 One of the attacks resulted in a leak of the personal data of TSE staff.5

Election-related cyberattacks occurred during the 2018 general election campaign, including against political groups and journalists. In September 2018, the Facebook group Mulheres Unidas contra Bolsonaro (Woman United against Bolsonaro) had its name and content changed to support the candidate, and its moderators received direct threats; the administrator’s personal Facebook and WhatsApp accounts were also hacked.6

In May 2020, websites of secretariats, corporations, and municipalities of the government of Mato Grosso do Sul experienced attempted cyberattacks.7 Electrical company Energisa, which controls electricity distributors in 11 Brazilian states, had several services to customers taken down in early May 2020, after experiencing a cyberattack.8 Globoplay, Globo’s streaming service, suffered a hacking attack in May 2020; platform representatives reassured users that the hackers had no access to any subscribers’ personal data.9

Brazilian authorities have made some efforts to increase cybersecurity and invest more resources in overcoming current obstacles. Since 2008, Brazil has engaged in a multistakeholder debate to develop its cybersecurity agenda, which resulted in the opening of a National Cyber Defense Command, and a National School for Cyber Defense, which prepares military personnel for the use of cybertools for the sake of national defense.10

On Brazil

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Country Facts

  • Global Freedom Score

    72 100 free

  • Internet Freedom Score

    64 100 partly free

  • Freedom in the World Status

    Free

  • Networks Restricted

    No

  • Websites Blocked

    No

  • Pro-government Commentators

    Yes

  • Users Arrested

    Yes