One of the central themes of contemporary political debate, disinformation motivates political and legislative responses from governments around the world. Under the argument of maintaining a healthy public sphere, legislatures in various global regions, including Latin America, are proposing laws to regulate issues like false news, hate speech, defamatory campaigns and the dissemination of foreign propaganda.
The current state of these laws has just been mapped and made available for anyone to access with the Nov. 6 launch of LupaMundi, an initiative from Brazilian fact-checking agency Lupa. Available in Portuguese and English, the interactive map brings together information on laws and bills linked to disinformation from 188 countries out of the 195 recognized by the United Nations (the seven excluded, due to a lack of available sources, are Antigua and Barbuda, Dominica, Iceland, Micronesia, Niger, Palau and Suriname).
"Many countries are making an effort to respond to disinformation and its impacts through their legal systems, but until now, it wasn't possible to see this within a bigger picture that would allow comparisons and analysis from a single place. That's what LupaMundi allows, and that's why it's so relevant," Lupa's executive director, Natália Leal, told LatAm Journalism Review (LJR). "It’s a work that reflects the most recent discussions on disinformation, as it brings together references that have been sought by different groups of researchers and professionals."
The mapping allows for a comparative and comprehensive look at how each country is dealing with disinformation. According to its creators, the global mapping is unprecedented and aims to "encourage research and the production of content on the subject, leading to the qualification of the public debate on combating disinformation." Its target audience is journalists, researchers and academics working on disinformation around the world.
Among the democratic countries of Latin America and the Caribbean, no specific laws against disinformation have been passed, but there are initiatives, such as the one currently under discussion in Brazil, that are trying to change the situation. The absence of specific legislation to combat disinformation can sometimes lead to distortions, such as the use of other laws, created for very different purposes – such s combating terrorism – for this end.
The initiative – which, according to Leal, should be updated regularly, but with no set frequency – encourages discussions about what disinformation is, what its current situation is in Latin America, and what the challenges and relevance are in tackling it.
Projects against disinformation can also have negative effects on democracy and freedom of expression, including independent journalistic activity. Laws in countries such as Nicaragua and Venezuela demonstrate how legislating on what is or is not false speech can serve as a tool of censorship.
“In terms of advocacy, the concept of disinformation is useful, interesting and describes a situation that is already historic, but has new characteristics with the advent of the Internet. However, in legal terms, disinformation is presented as an ambiguous term that covers a wide range of behaviors, from scams to slander and even intentional lies. Some of which are lawful and some of which are not," Agustina Del Campo, director of the Center for Studies on Freedom of Expression and Access to Information (CELE, by its Spanish acronym) in Buenos Aires, which maintains its own Legislative Observatory on nine Latin American countries, told LJR.
"Because the definition of disinformation is ambiguous, these laws allow for broad interpretations that can be used to restrict free speech and content beyond what was originally intended," she added.
LupaMundi points out which countries have specific legislation on the dissemination of false information, and also countries where, although there are no specific laws, other legislation – such as the Penal Code – deals with the issue. The map also includes 14 bills that the Lupa team considered to be the most relevant globally at the moment.
The survey shows that only 35 countries have passed specific laws on disinformation, 28 of which are in Europe. This concentration is due to the Digital Services Act (DSA), a regulation of digital platforms approved by the European Union (EU) that came into force in November last year. The law requires digital platforms to adopt active stances and comply with procedures defined by law to moderate illegal content online.
In Latin America, a similar initiative closer to being approved is Brazil's Bill 2630, of 2020, known as the Fake News Bill. After more than three years of discussion and amendments, there was great speculation that the bill could be voted on and approved in Congress between April and August this year, but that never happened. The expectation now is that it will be voted on in 2024 at the earliest.
According to its sponsor, Congressman Orlando Silva, from the center-left, the bill preserves three important pillars: freedom of expression, mechanisms for transparency in digital platform services, and a change in the liability framework for platforms. The lack of consensus, however, on which body would be responsible for monitoring and following up on the application of the measures provided for in the law prevented its approval.
A specialist in freedom of expression on the internet, Ivar Alberto Hartmann, a law professor at the Institute of Education and Research (Insper) in São Paulo, sees both positive and negative aspects in the most recent versions of the bill.
"Brazilian legislation to combat disinformation is practically non-existent. There have been occasional changes to electoral legislation, but they are restricted and were made without a good understanding of how online communication works," Hartmann told LJR.
Among the positive points of the proposed law, according to the researcher, is the establishment of transparency obligations on the part of social media platforms, which will need to explain what criteria they use in their content decisions. The law also offers more procedural guarantees to users, who will be able to appeal if their content is removed.
Among the negative points, for Hartmann, is the lack of definition of the body responsible for overseeing the application of the law.
"It would be a catastrophe if the body in charge of supervising social media was a political body, freely appointed by the president. That would mean that this body would have control over freedom of expression. It needs to be a totally autonomous body, where the person appointed cannot be dismissed," Hartmann said. "But it's totally feasible to do that. That was the option adopted in the EU."
The fear that legislation to inhibit disinformation will actually be used to restrict freedom of expression is the main reason for experts' reticence about this type of law.
According to Adriana Amado Suárez, an Argentine journalist and professor at the Camilo José Cela University in Madrid, certain conditions common in the region make it easier to exploit the issue politically, such as a lack of transparency in public data, low levels of trust, and consumption of news and public information devalued by excessive propaganda.
The researcher noted that this often limits the work of journalism:
"Many journalists, faced with the possibility of having a problem in this regard, prefer to abandon certain investigative topics. They prefer to keep silent about political or partisan opinions," Suárez told LJR.
In this respect, the cases of the authoritarian regimes of Nicaragua and Cuba warn of risks, said political scientist Andrés Cañizález, director of the organization Medianálisis and professor at Andrés Bello University in Caracas.
Although they don't have specific laws on disinformation, both have articles in other codes that limit freedom of expression under the claim of inhibiting the spread of supposedly false information.
"In these countries, disinformation is seen from the perspective of a repressive power that uses the category to be able to sanction or punish those who oppose it or who spread information following a logic of political confrontation," Cañizález told LJR.
Fears about this type of restriction often prevent legislation on the subject from moving forward in various countries. For example, in Mexico in 2021, Senator Ricardo Monreal proposed amending some articles of the Federal Telecommunications Law to regulate social media. A strong negative reaction meant that the bill did not prosper.
“Many civil society organizations and social media platforms opposed this project because it seemed more of a punitive measure against users and platforms. This complexity arises, especially in our current national context, where political power seems to influence all branches of government. The goal seems to be control rather than disincentivizing disinformation,” Carolina Palfar, a lawyer at the Mexican Supreme Court, told LJR.
The question that remains, in this context, is whether it is possible to have legislation on disinformation that does not become instrumentalized and inhibits freedom of expression.
Professor Amado Suárez believes that, in the context of imperfect democracies such as those in Latin America, the risk is not worth it.
“Democracy does not require laws of truth, but rather laws that guarantee access to information. We need to facilitate cross-checking not only by fact-checking agencies, but also by citizens and institutions. Universities should also play a role in monitoring the information provided by the government on issues such as climate change and vaccines,” he said.
Researcher Del Campo, from CELE in Buenos Aires, believes that it’s necessary to separate the issue of disinformation into its various elements – such as calumnia (defamation) – in order to assess the shortcomings of legal frameworks.
"Where we really face challenges as a society is in relation to expressions that, while not illegal or subject to any other concept of illegality, we perceive as harmful and believe should be subject to legal regulation. Complications arise here, especially if we want to establish new restrictions,” Del Campo said.
“At this point, we face a problem of definition, but also one of democratic necessity. How do we justify restricting public debate on matters of public interest? How do we make this restriction legally viable without undermining the open public debate necessary for the functioning of our democracy? I believe this balance is not being struck. Although legally complicated, I believe it’s achievable,” she said.
Cañizález, from Medianálisis, believes that it depends on the sense and situation in which each piece of legislation is made.
"It all depends on the context in which these laws are signed. For example, if they were in a context where there are broad freedoms and these laws emerged after an inclusive debate involving journalists' associations and universities, it could be interesting. These laws would only make sense if they are approached with democratic principles in mind," he said.