A FREE AND INDEPENDENT MEDIA?

A. The Media as a Key Player in Brazilian Democracy and in its Backsliding

The media in Brazil, by some measures, could be deemed free. Some data related to attacks on journalists and the press more broadly, particularly during the Bolsonaro government, would, however, certainly lead to a less positive conclu­sion.

Reporters without Borders (RSF) provides a grimmer picture of the current scenario in Brazil. In a report, they counted 580 attacks against the media under President Bolsonaro in 2020 alone, 85 per cent of which were from Bolsonaro himself and his sons (18.7 per cent from Bolsonaro and 66.5 per cent from his sons Flavio, Eduardo and Carlos). Half of Bolsonaro’s cabinet has already attacked the press.

Specifically due to violence against journalists, RSF has ranked Brazil slightly below 100 among the 180 countries surveyed (103rd in 2017, 102nd in 2018, 105th in 2019, 107th in 2020 and 111th in 2021), which is comparatively behind other Latin American countries (Costa Rica is 5th, Uruguay is 18th, Chile is 54th, Argentina is 69th, Panama is 77th, Peru is 91st, Ecuador is 96th, Bolivia is 110th), but ahead of some countries with a history of narco-guerrillas consist­ently murdering journalists (Honduras is 151st, Mexico is 143rd, Colombia is 134th). Even though according to its �Violations of Press Freedom Barometer’, Brazil has not counted any further murders of journalists since 2019, there were six in 2015, three in 2016, one in 2017 and four in 2018.^[1095] For RSF, �Brazil continues to be an especially violent country for media, and many journalists have been killed in connection with their work’, which has become even more serious given that �any media revelation threatening [Bolsonaro’s] or his admin­istration’s interests triggers a new round of violent verbal attacks that foster a climate of hatred and mistrust towards journalists’.^[1096] During the COVID-19 pandemic, such attacks were even more intense.^[1097]

Based on those reports, it sounds like an overstatement to classify Brazil’s media as free or even �vibrant’.

Brazil does not suffer from governmental censorship. However, the judici­ary has, in some cases, interpreted libel very leniently to the point of curtailing freedom of press. The Constitution has a number of provisions recognising freedom of speech and press, but also sets some limits.

Lower courts tend to be more favourable to setting libel damages than higher courts. Supreme Court precedents, especially for public authorities, do not leave doubts that the freedom of press should be preserved and guaranteed.^[1111] The Court has already ruled that the publication of a report or opinion with harsh and even ruthless criticism wards off the intent to offend, mainly when targeting public figures,^[1112] and that the confidentiality of the journalistic source is inviolable.^[1113] More impactful still, it declared the unconstitution­ality of the Press Act (Lez da Imprensa),^[1114] a vestige of the civilian-military dictatorship whose provisions largely limited press freedom.^[1115] On the other hand, the first appointed justice to that Court by President Bolsonaro, Kassio Nunes Marques and the Attorney General of the Republic, Augusto Aras, filed criminal complaints in the Federal Court against Conrado Hubner Mendes, a professor at the University of Sao Paulo and a columnist for Folha de S.

Hence, there is a reasonable degree of freedom of press and some institu­tional protection for it, but also some important warnings. The media has been a central player in Brazil’s democracy and exerted an important check on the government and public officials. It features some degree of pluralism, but the largest and most influential media outlets are concentrated in the hands of a few. According to Media Ownership Monitor Brasil (MOM-Brasil), which keeps track of the media concentration in the country, the four biggest televi­sion organisations - Globo, SBT, Record, and Band - have 71.1 per cent of the national audience combined, and the four biggest news organisations - Globo, Folha, RBS, and SADA - reach 50.42 per cent of the readers of newspapers. There is also a high degree of cross-media ownership concentration: the market share of the eight biggest media companies reaches a staggering 74.7 per cent audience across distinct media sectors.^[1117] Such characteristics raise some serious risks, such as a lower level of accountability that also contributes to a higher level of politicisation. This is particularly worrying if there is some depend­ence of such media outlets on state advertising (about 7 per cent of the whole market)^[1118] and public licences.^[1119] More seriously, a handful of media outlets, especially communitarian and regional ones, are owned by politicians^[1120] despite such a practice being constitutionally forbidden for elected officials.^[1121]

Religious groups have also largely advanced in media ownership, with some significant political impact as they have increasingly been immersed in politics and pushed their doctrines mostly to a very conservative agenda.^[1122]

Media concentration has also contributed to a more monolithic depiction and interpretation of events, following narratives that reproduce themselves across distinct media companies without much further analysis or self-criticism.

This is the paradox of Brazilian media freedom: the media has been a funda­mental player in making public officials more accountable, but it can be very selective and biased when reporting on key events in the country.^[1124] This would not be a serious problem if dissenting views could also find their place more easily in the mainstream media. The high concentration and low self-accountability that is prevalent have nevertheless limited more successful strategies to enhance media pluralism.^[1125] There is no official censorship, but media organisations may find themselves constrained by indirect means such as state advertising and licensing. Media organisations, in any case, are extremely powerful agents in Brazilian democracy and attempts to interfere more directly in their functioning or merely regulate them have always resulted in fierce backlash.^[1126] Even move­ments to democratise the media, which gained ground especially during the presidencies of Lula da Silva and Dilma Rousseff, have receded in recent years.^[1127] History is evidence that presidents who clash with such powerful organisations - and, in particular, with Globo - tend to pay a high political price. The inter­net, however, has gradually paved an alternative road of communication that has challenged such dominance, but it has also come with serious side-effects, notably the spread of fake news and misinformation. The traditional media organisations might have partially lost their influence on people’s minds. It does not necessarily follow, though, that through the internet their minds have become freer and better informed.

B. The Power of the New Media: Fake News as the New Normal

For a regular user, the internet in Brazil could be deemed free by some meas­ures: websites are not blocked, there is no governmental censorship, and internet pages are constantly updated with information and opinions from diverse political spectra - all typical signs of a democratic environment. It is also quite widespread, especially for a continental country. According to ICT Households 2019, 74 per cent of Brazilians have access to internet, an impres­sive expansion compared to the 41 per cent of 10 years ago. Still, there is a high degree of inequality: whereas 97 per cent of Brazilians with higher education have access to the internet, only 16 per cent of those who are illiterate or are still in preschool do so. Income also plays a role: 94 per cent of Brazilians who earn more than 10 times the minimum wage are online, while this proportion falls to 86 per cent among those earning from three to five times the minimum wage, and 61 per cent among those earning less than the minimum wage. The way Brazilians access the internet also reflects such disparities: 99 per cent of Brazilians access it through mobile phones and 58 per cent of them do it exclu­sively through these devices. In turn, computers, TVs, and videogames are used for internet usage by merely 42 per cent, 37 per cent and 9 per cent of the population, respectively.^[1128] Although Brazilians frequently access the internet - 90 per cent said they do it daily - WhatsApp and social media platforms, such as Facebook, Instagram, Twitter and Telegram, prevail over any other content. There is a clear divide between rich and poor as regards access to professional journalism.^[1129]

Whereas the internet looks free because there are no network restrictions and social media and websites are not blocked and nor do they have their content censored, there are some serious issues pointing toward a less positive scenario. Freedom House, for instance, classifies Brazilian internet as �partly free’ (64 out of 100) in its Freedom on the Net 2021 report. It is quite an unexpected result given that, as Freedom House itself reports, �Brazil’s online sphere is vibrant, featuring many frequently updated websites and social media pages that exam­ine the issues of the day from a variety of perspectives.’^[1130] The same institute also places Brazil as a �free country’ in its annual Freedom in the World Report, so it is quite striking that the internet would be in a worse position than Brazil’s general freedom status. In fact, Brazil is the only country with such a divergent classification in Latin America in 2021.

The causes for this evaluation are many, but one in particular is critical: Brazilian internet has been overwhelmed by fake news and misinformation, and the federal government has largely used this strategy to strengthen its grip on power and keep its social base engaged. In a country where the largest share of internet users spends most of their time on social media, and where WhatsApp and other messaging services are very widespread across diverse regional and economic social strata, the prerequisites for creating a parallel reality and post­truth politics^[1131] are all there. Jair Bolsonaro was very successful in occupying these spaces when running for president in 2018 and has since been strongly engaged in keeping the internet as his main platform of communication with his base. More seriously, according to Freedom House, there is an �apparent coordination of people connected to the government’ for this end, notably the so-called Gabinete do Odio (Office of Hate), a group of government advisers whose job is to attack critics of President Bolsonaro, expand pro-Bolsonaro blogs and social media, and spread fake news.^[1132] This political tactic has proven very deleterious for Brazil’s democracy, and its impacts can already be felt in the streets, �spilling beyond the internet’.^[1133]

There has been some political reaction to such a strategy. Congress installed a parliamentary committee (CPMI) to investigate the participation of Bolsonaro and his entourage - called �Fake News CPMI’^[1134] - which could reveal tactics like mass message firings through WhatsApp - a much used tool for boosting Bolsonaro’s election in 2018^[1135] - as well as interrogate individuals involved in deliberately spreading misinformation.^[1136] The Supreme Court, by the same token, opened a fake news investigation targeting attacks against its members, which led to police raids on distinct locations for spreading and sponsoring fake news and threats against the Court.^[1137] Finally, the Superior Electoral Court has already warned the government that such tactics will not be tolerated in the 2022 elections,^[1138] and the Supreme Court included in the Fake News inquiry^[1139] President Bolsonaro’s continuous attacks on Brazil’s electronic voting system. Therefore, spreading fake news and misinformation has become a fundamental catalyst for Bolsonaro’s election as well as for keeping his support­ers continuously motivated. Attempts to disrupt such a system have been fiercely combatted by Bolsonaro himself and his acolytes through distinct avenues, from calls for freedom of speech to legal battles or even blatant co-optation of political agents.^[1140]

Some legislation aimed at combatting fake news have been discussed in Congress, and one called �Brazilian Law on Freedom, Responsibility, and Transparency on the Internet’^[1141] (or the �Fake News’ bill) has already been passed in the Senate, though it may find further resistance in the Chamber of Deputies. This legislation aims to fight fake news by specifying some criminal offences involving individuals and corporations that either circulate misinfor­mation or finance such activities. It also focuses on electoral campaigns in order to avoid illegal advertisement, as happened in the 2018 presidential elections. Although seemingly justified based on how serious the spread of misinforma­tion has become, legislation as such has the potential to criminalise content, create avenues for personal identification and disrupt privacy by requiring that message apps retain conversations for a period of time.^[1142] This scenario is more worrying still because the judiciary and mainly the lower courts, similarly to what happens in traditional media, have a record of ordering that some contents be blocked or suspended by reason of a criminal investigation, libel or electoral lawsuits - incidentally a resource largely adopted by politicians.^[1143] This reality has raised some interesting debates over the limits of freedom of speech^[1144] and the constitutionalisation of the digital environment.^[1145]

On the other hand, Brazil provides a reasonable regulatory framework. ANATEL, the Brazilian Agency of Telecommunications, which regulates the internet market (and other communication sectors), is well-known for its tech­nical expertise despite some criticism of it sometimes favouring private interests over public ones.^[1146] There is also the Brazilian Internet Steering Committee (CGI.br), an independent organisation composed of members of the public and private sectors aimed at promoting studies and setting governance principles for improving the quality of the internet.^[1147] The �Brazilian Civil Rights Framework for the Internet’ (�Marco Civil da Internet’),^[1148] originated from rich debates with various sectors of organised civil society^[1149], has since been praised as a world paradigm for the protection of internet freedom, laying down principles such as network neutrality, universality of access, privacy protection and prohibition of censorship, among others.^[1150] It has nevertheless some worrying provisions on data retention.^[1151] Brazil also features a modern data protection law called �Brazilian General Data Protection Law’,^[1152] which is designed for protecting personal data and is basically inspired by the well-regarded European General Data Protection Regulation.^[1153]

The internet has certainly democratised access to information and competed with traditional media outlets, a phenomenon that is seen in several countries in the world. The same reasoning applies to the paradoxical situation of a more democratised access to information and the expansion of misinformation and fake news through the internet. Brazil has seen this paradox directly affecting the quality of its democracy: the democratisation of information has also meant the democratisation of misinformation with severe consequences for the politi­cal environment. Jair Bolsonaro is certainly the most successful politician who has ever ascended from this new environment, proving that the internet has already radically shaken Brazilian politics - a phenomenon that has also been seen elsewhere.^[1154] It is the challenging reality of a country where citizens have long demanded greater media democratisation amidst such high media concen­tration, but which has not yet come to grips with the deleterious side-effects of strategic misinformation, let alone strategic misinformation boosted by govern­mental authorities. This is not an exclusive Brazilian phenomenon, but Brazil is one case that the international community should be looking carefully into in order to diagnose the disease and find solutions for putting the country back on the track of democracy.