Balancing Free Speech and Social Media Regulation

Justice on Brazil’s Federal Supreme Court

The internet, while democratizing access to information and the public square, has also brought new risks and challenges to democracy, the Hon. Luís Roberto Barroso told a crowd of students and professors at the Ulysses and Marguerite Schwartz Memorial Lecture titled “Democracy, Social Media and Free Expression.” Barroso, a justice of Brazil’s Federal Supreme Court since 2013, recently served a two-year term as president of the Superior Electoral Court, the highest court administering the electoral process in Brazil.

In his lecture at the Law School last month, Barroso described how the current wave of authoritarian populism around the world uses social media—including platforms like WhatsApp and Telegram in addition to Instagram, Facebook, and TikTok—to spread disinformation, hate speech, conspiracy theories, and slander. This “violates fundamental rights of people,” he said, “and compromises free speech by tainting the public debate.”

Public debate, he said, is “an essential part of a functioning democracy.” Before the proliferation of the internet, most publicly available information was filtered by the press, which adhered to professional standards aimed at ensuring accuracy, fairness, and civility.

“The problem that is happening in the world is that people do not differ anymore only in their opinions, they differ in the facts they believe,” he added. If people can no longer agree on facts, it hinders their ability to communicate, leading people to grow intolerant of others and lash out in violence.

Although social media is the most important source of information for most people these days, Barroso said, these platforms “don’t produce information, they don’t produce knowledge, they don’t produce news.” If social media continues to encroach on the professional press’s business model, we will continue to lose valuable content and information, he warned.

Additionally, social media has dramatically changed the scale of access by enabling ordinary people to become publishers—including those who are neither trained nor required to adhere to professional norms. This can lead to serious consequences such as the unfiltered circulation of disinformation and what Barroso called “the tribalization of life.”

Echo chambers, in which people only consume information that matches what they already believe, increases polarization and radicalization, he said.

There was a belief when the internet was built that “it should be free, open, and unregulated,” he said, “however, this belief had to cede to reality.”

Companies running digital platforms should be subject to content control, Barroso said. Regulating content, he admitted, is one of the most difficult topics the democratic world faces, because governments and platforms must delicately balance free speech with regulation.

He suggested democratic governments provide a basic framework for content regulation that requires companies be transparent, establish due process, and not discriminate in their enforcement. Digital platforms should then self-regulate through terms of use and by identifying what and how to moderate content. Barroso also suggested the industry could use “regulated self-regulation” by establishing independent non-governmental bodies to supervise regulation and moderation.

Content moderation—companies banning, amplifying, or labeling content posted on their platforms—should confront inauthentic behavior and illegal content. Barroso defined inauthentic behavior as the use of bots, fake profiles, or hired provocateurs to amplify misinformation, disinformation, lies, hate speech, or conspiracy theories.

Within the realm of content regulation, platform liability is another major point of discussion, Barroso said. He pointed to experimental models in the European Union and Brazil as potential ways to handle subjective liability. The EU recently approved the Digital Services Act, which, he said, will allow courts to hold a platform liable if a party notifies the platform that content is illegal or violates rights, the platform does not remove the content, and the court finds that the content should have been removed. In Brazil, a platform becomes liable for harms caused by any content subject to a provisional judicial order of removal.

Throughout the elections the justice oversaw, the Superior Electoral Court partnered with digital platforms to ensure they were prepared to remove content posted and amplified by inauthentic actors. The Court additionally established direct channels of communication with the platforms to notify them when the Court identified misinformation.

Brazil just completed a very close election in which the incumbent, Jair Bolsonaro, sought to sow doubt in advance about the outcome. The Court played a role in attempting to fight disinformation between candidates—something Barroso said is “very difficult to do.” Still, what has so far been a relatively smooth transition is due in part to the effective regulatory structures and transparency of administration that were in place.

In the mid-term, Barroso believes society has a vital role to play, as the work of the courts, government regulation, and platform content moderation is not enough on its own.

“Despite all the efforts by governments and by the platforms, if we want to preserve the internet as a healthy public sphere, that will depend on the attitudes and demands of society,” he said.

People should be educated and aware of how to sort falsehoods from truth as well as the dangers of amplifying inauthentic information.

While Barroso focused on content regulation, he also indicated that the economic regulation of social media companies was necessary, in part to prevent further erosion of the professional press’s business model. He said that included applying antitrust law, protecting consumers, protecting copyright, and establishing fair taxation.

Additionally, Barroso said he sees a greater need for privacy protections as advances in biotechnology, neuroscience, psychology, and information technology provide a means to manipulate users. Cognitive liberty, he said, is of rising importance—and one he hopes to see studied in greater depth.

“There is a new fundamental right being built and being discussed,” he said, and it is all about ensuring companies do not use the vast amounts of information they collect to “influence my will … or my feelings … or my desires.”