The so-called fake news - especially spread through social media in order to divulge politic or economic interests that taint third parties’ image - is a recent relevant issue not only in the election and politics scenario, but also in the legal and corporate environment. In this case, there are several questions regarding the protection of corporate image, such as the legal measures in case of fake news.
This issue is now a priority in the Brazilian Electoral Superior Court (“TSE”) due to the presidential election this year.
Portaria Nr. 949/2017 of the TSE created the Advisory Council about Internet and Election, with ten members, including members of the Electoral Justice, Government, Army and civil society. The attributes of the Council include the development of researches and studies about electoral rules and the influence of Internet in the election, specifically concerning the risk of fake news and the use of bots to disseminate information. The Council also provides opinion on issues as requested by TSE presidency and propose measures and targets to enhance the existing rules.
Such recent concerns raised the debate in the corporate environment, even though there are already several legal consequences for such kinds of malpractice.
In the criminal area, in case fake news are divulged in order to offend someone, for example, it could constitute a crime, such as defamation, libel or slander, as established in the Criminal Code. The dissemination of information capable of causing panic or public disturbance, in its turn, is also a conduct stablished in article 30 of Decreto-lei 4.766/42. Causing alarm, announcing disaster, non-existing danger or acting in a way to produce panic are also classified as malpractices and criminal infractions.
In the civil area, the scope of effects can be even broader, reaching also those that imprudently share untrue information. In this case, according to the Civil Code, any person that causes losses (material or moral) to another, even if by negligence or imprudence, may be responsible by tort (indemnification, delay fines etc). In other words, even if the person does not act intentionally, the lack of reasonable diligence to confirm the shared information might already result in losses and damages, mainly when it involves untrue facts or speeches to third parties.
The debate nowadays on such issues divides specialists. There are those that defend more severe penalties for those divulging fake news, but some existing legislative bills can also be highlighted:
Ø PL Nr. 7.604/2017 that considers social media providers responsible in case of fake or illegal information divulged. (fine up to R$ 50 million if the information is not deleted within 24 hours);
Ø PL Nr. 6.812/2017 that established the following crime: “divulge or share, by any way, through the internet, fake or prejudicially incomplete information to affect an individual or entity. (2 to 8 year prison sentences and fine); and
Ø PL Nr. 8.592/2017 that establishes the following crime: “divulge or share, by any social communication media capable of reaching an undetermined number of people, fake news or prejudicially incomplete information, which is known to be fake (one to two years prison sentences).
Therefore, despite the already existing legal measures available, there is a clear legislative concern to provide even more specific tools to prevent and contest fake news in order to protect the individuals and entities image in the cybernetic environment.