Minor’s online safety: upcoming regulatory challenges for the tech industry in the US and Brazil

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The Legal 500

On January 31, the US Senate Judiciary Committee held a hearing to discuss minors’ online safety, which featured testimonies from CEOs of five tech companies – Meta, TikTok, X, Discord and Snap –, who were subjected to intense questioning by the Senators.

While discussing users’ – especially minors’ – safety in the platforms, the Committee also addressed other complex matters, such as platform endorsement on ongoing bills, platform liability for user generated content, parental controls, the use of platforms for drug traffic, and the creation of a federal agency to enforce platform legislation.

As a backdrop, lawmakers are seeking to pass federal laws aimed at safeguarding minors online. In fact, the Committee has recently approved a package of tighter regulations in this sense – the Kids Online Safety Act (KOSA), the Children and Teens’ Online Privacy Protection Act (COPPA 2.0), the Strengthening Transparency and Obligation to Protect Children Suffering from Abuse and Mistreatment Act (STOP CSAM Act); and the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT Act) –, which must still be submitted to a vote before the full Senate.

Like the US, Brazil is also going through intense discussions regarding minor’s safety online and possible regulations on the subject. With a population of over 200 million, Brazil ranks 3rd in the world in time spent on social media, even surpassing the US. The massive usage has positioned Brazil as key market for internet platforms, which, however, face complex challenges in the country.

In general, Brazil has established itself as a welcoming environment for innovation. The country has a long-standing tradition of openness to new technologies, with regulators and courts consistently showing support for progress and disruptive solutions. For example, in recent years the Supreme Court has affirmed the legality of e-hailing services and end-to-end encryption in messaging apps. Nevertheless, ongoing discussions in the US, Europe, and elsewhere could have a ripple effect that impacts Brazil, as unseen challenges often accompany innovation. Therefore, it is crucial for companies to actively engage in democratic debates and remain vigilant, prepared to respond effectively to local challenges. Such proactive involvement is key to mitigate potential adverse effects in the short, medium, and long term.

Child and adolescent online safety and digital platforms regulation have become focal points for Brazilian lawmakers. Recently, the Brazilian Congress has enacted Law # 14,811/2024, criminalizing cyberbullying and toughening the penalties for some crimes against minors, particularly those committed online. Moreover, there are pending bills in Congress that may deeply impact the industry. Namely, the so-called “Fake News Bill” (Bill #2,630/2020), a Digital Services Act (DSA)-style law to regulate online platforms – expected to be voted this year –, as well amending the Copyright Act and creating a specific AI regulation.

Diverse authorities and agencies have expressed a strong interest in assuming a more prominent role in the regulation of the technology market. Recently, the  newly appointed commissioner of the Brazilian Antitrust Authority (CADE), expressed his intention that CADE be empowered to control and regulate the tech industry. He is not alone. The Brazilian Telecommunications Agency (ANATEL) is studying regulations on tech companies, while the Brazilian Data Protection Authority (ANPD) has presented contributions to the Fake News Bill and has volunteered to be named as the central supervisory authority on AI regulation and enforcement. This issue should be resolved throughout the year by the legislators, so the industry should follow closely.

While there is no definition on the legislative front, platforms have been under the scrutiny of various authorities. The Brazilian Supreme Court has increasingly focused its attention on the tech industry, particularly in cases involving the spread of fake news and anti-democratic content. On the other hand, within the current administration, President Lula has appointed Flávio Dino as the Minister of Justice. In this role, he adopted a firm stance towards the tech industry following a surge in school shootings. Mr. Dino has since departed from the government after being appointed as a Justice on the Supreme Court, which indicates that the court will continue to be actively engaged in discussions related to social media and the tech industry in the coming years.

In the short term the Supreme Court is expected to issue groundbreaking decisions on key matters for the market: the possibility of suspending the functioning of messaging apps that fail to comply with court orders to disclose users’ records and private communications, and the review of internet service providers' civil liability regime for damages arising from user generated content.

Regarding the impact of social media in the elections, the Superior Electoral Court is currently working on tighter regulations for the 2024 municipal elections, which, if approved, may impact digital platforms. These resolutions, which are under public consultation, will create additional requirements related to, among other matters, electoral publicity, social media accountability for promoted content and the use of AI.

Similarly to the US, platform liability for user generated content is a hot topic in Brazil. The Brazilian Internet Act establishes that platforms will only be held liable for third party infringing content if they fail to remove it after receiving a valid court order. This rule has long been a safe harbor for platforms operating in Brazil; however, as mentioned, its constitutionality is currently being examined by the Supreme Court.

Despite the lack of specific rules regulating safety on digital platforms and content moderation, Brazilian authorities are becoming more active on this area. Brazilian legislation establishes general duties for service providers to ensure safety and to protect minors, and these duties have been invoked in investigations on tech companies and their safety practices.

In this regard, in an ongoing investigation about the processing of children and adolescents’ personal data when registering in TikTok, the ANPD has issued a preliminary decision “suggesting” that TikTok improves its age verification mechanisms. The investigation is ongoing, and a final decision is pending.

In conclusion, 2024 is poised to be a pivotal year in the history of tech regulation in Brazil. With new regulations on the horizon and heightened scrutiny of platform activities, staying alert to unfolding developments will be crucial.

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