Regulation of Social Media and Democracy

André Medici

Introduction

This is one of the most challenging articles I’ve attempted to write this year. I’ve been reflecting on this topic for quite some time, but it remains an open question with uncertain prospects. Discussing the regulation of social media in the context of democracy and freedom of expression is a complex and sensitive task. Social media plays a crucial role in disseminating information and strengthening the plurality of voices, making it an indispensable tool for democratic practices. However, it can also amplify hate speech, spread misinformation, and manipulate public opinion, creating negative impacts that challenge democratic principles.

The difficulty of this debate lies in striking a delicate balance between preserving freedom of expression—a fundamental pillar of democracy—and ensuring that this freedom is not misused to harm social cohesion, compromise elections, or incite violence. Developing regulations that address abuses without unjustly limiting free expression requires technical rigor, legal sensitivity, and broad social participation. Any regulatory intervention must avoid the risk of censorship or overreach, which could undermine the very democracy it seeks to protect.

Moreover, this issue is fraught with diverse interests and political tensions. While some advocate for stricter regulations to curb abuses, others fear that this could set precedents for arbitrary restrictions. This divergence underscores the complexity of the topic and the need for a thorough, evidence-based debate rooted in democratic values to create a safer and fairer digital environment without compromising fundamental citizen rights.

Benefits of Social Media

Social media has brought enormous benefits to society since its inception and development over the last few decades, to the point where life without it has become almost unthinkable. It has revolutionized how people communicate, access information, and interact. Here are some of the most significant benefits:

Global Communication and Connection

• Enables instant connections across the globe, breaking down geographical barriers.
• Facilitates contact with distant friends and family, fostering a sense of closeness.
• Creates strong communities by allowing people with shared interests to interact, regardless of location.

Access to Information and Education

• Provides real-time access to news, updates, and global or local events.
• Shares educational content, tutorials, and online courses, democratizing knowledge.
• Promotes discussions on critical social issues, such as human rights, climate change, and equality.

Amplification of Voices and Democracy

• Gives marginalized groups a platform and enables social movements to gain global visibility.
• Facilitates the organization of protests, campaigns, and collective actions for social change.
• Allows citizens to expose injustices, corruption, and abuses of power in real time.

Economic and Entrepreneurial Growth

• Empowers small businesses and entrepreneurs to promote their products and services cost-effectively.
• Enables influencers, content creators, and professionals to generate income through these platforms.
• Provides integrated e-commerce features, helping businesses reach new markets.

Promotion of Mental Health and Well-being

• Connects people facing similar challenges, such as illnesses or emotional difficulties, fostering mutual support.
• Enables experts and organizations to share valuable information on physical and mental well-being.

Encouragement of Creativity and Culture

• Allows artists, writers, musicians, and creators to share their work with vast audiences without intermediaries.
• Helps disseminate regional cultural traditions, stories, and artistic expressions worldwide.

Collaboration and Innovation

• Encourages the sharing of ideas and collaboration across different areas and regions.
• Provides companies and organizations with direct consumer insights and feedback.

Entertainment and Leisure

• Offers various entertainment formats, such as videos, memes, music, and live streams.
• Creates a sense of fun and belonging through viral challenges and games.

Facilitation of Public Services and Emergency Responses

• Governments and organizations use social media to inform the public about services, campaigns, and emergencies.
• During natural disasters or crises, social media quickly disseminates critical information.

Encouragement of Debate and Diversity of Opinions

• Brings together different perspectives and fosters public debate on various topics.
• Provides a platform for historically excluded groups to be heard and recognized.

Social media offers enormous benefits for communication, learning, economic activity, and social engagement. Conscious and responsible use of these platforms, combined with appropriate public policies and regulations, can maximize their advantages for society. However, as we will see, they also come with risks and challenges.

Risks of Social Media

While social media offers many benefits, such as democratizing access to information and facilitating global connections, it also poses significant threats to society, especially when used irresponsibly or without regulation. These risks affect mental health, democracy, social cohesion, and security. Key risks include:

• Spread of Misinformation and Fake News - The rapid spread of false news can cause panic, manipulate public opinion, undermine elections, and fuel hate speech. Disinformation campaigns may influence election outcomes, spread conspiracy theories, or weaken trust in institutions.
• Social Polarization and Echo Chambers - Algorithms often prioritize content that reinforces existing beliefs, creating “bubbles” where individuals are only exposed to similar ideas. This can lead to extreme polarization, hindering dialogue and consensus-building on social and political issues.
• Mental Health Impacts - Excessive social media use can lead to anxiety, depression, and feelings of inadequacy, especially among young people, due to social comparison and the constant quest for validation. Platforms are designed to maximize usage time, encouraging compulsive behavior.
• Behavioral Manipulation - social media uses personal data to target highly personalized content and ads, subtly influencing decisions and behavior. The Cambridge Analytica scandal demonstrated how personal data can be used to manipulate elections.
• Privacy Risks - Personal data is often collected, sold, and used without users' knowledge or consent, exposing them to privacy violations and cyberattacks. Governments or malicious actors may use social media to monitor dissidents or reinforce authoritarian regimes.
• Amplification of Hate Speech and Violence - Extremist groups and individuals use social media to spread hate speech, radicalize people, and incite violence. This can lead to hate crimes, terrorist attacks, and the erosion of social cohesion.
• Erosion of Democracy - Bots, fake accounts, and disinformation campaigns can undermine democratic processes by spreading propaganda, suppressing votes, or discrediting election results. Foreign interference in elections has been well-documented in the U.S. and other countries.
• Technological Dependency - Many people rely on social media for social interactions and information consumption, reducing face-to-face connections and limiting perspectives. This can create a less critical and more manipulable society.
• Weakened Authentic Communication - Online interactions can be superficial, leading to less authentic and empathetic communication. This affects interpersonal relationships, reducing the depth of connections.
• Challenges to Regulation - The global nature of social media makes effective regulation difficult, especially with differing or non-existent legislation in various contexts. This creates loopholes that can be exploited for malicious purposes.

Addressing these threats requires user education, implementing regulations for transparency, data protection, and ethical moderation, promoting platform designs that prioritize user well-being, and strengthening international cooperation to tackle global challenges like misinformation and cybercrime.

Social media has immense potential for good, but its use must be balanced and conscious to prevent these threats from undermining fundamental societal values.

The North American Response

In response to the risks outlined above, many countries are increasingly focused on regulating social media. The United States is currently debating and implementing measures for this regulation, particularly concerning content moderation and platform accountability.

However, there is growing concern in the U.S. that social media could threaten freedom of expression and equity in how individuals and groups choose to express their political and moral views. In 2021, Texas and Florida passed laws limiting the ability of social media platforms to moderate content, ensuring greater freedom of expression for individuals using these networks.

Florida’s Law prohibits social media companies from banning political candidates and restricts practices like “shadow banning,” where user content becomes difficult to find.

Texas’ Law prevents platforms from banning users based on their opinions, aiming to avoid perceived censorship of conservative viewpoints. These laws also prevent the state from using its power arbitrarily against particular political stances, ensuring protection from ideological or political persecution of groups and individuals.

However, the constitutionality of these state laws is under review by the U.S. Supreme Court. Tech companies argue that such measures violate the First Amendment, which guarantees freedom of expression, by interfering with their right to establish their own content moderation policies as private enterprises. On the other hand, these states argue that the laws are necessary to prevent censorship of specific viewpoints.

At the federal level, there is also a debate over Section 230 of the Communications Decency Act of 1996. This section exempts platforms from liability for third-party content, allowing them to moderate harmful content without being held accountable. However, with the rise of hate speech and misinformation, there are discussions about reforming or repealing this section to increase platform accountability. Any such reforms must be approached cautiously to avoid unjust outcomes or manipulation of public power in favor of certain groups or ideologies.

In May 2023, the U.S. Supreme Court upheld the interpretation of Section 230, maintaining that social media platforms are not liable for user-published content. However, the debate over stricter regulation continues, with legislative proposals addressing issues such as misinformation, hate speech, and user data protection.

While there is no unified federal regulation on social media in the U.S., significant efforts at the state level and ongoing debates highlight the need to reform existing laws to tackle the challenges presented by digital platforms in contemporary society.

The European Response

Europe has made significant advances in regulating social media in recent years. The European Union (EU), in particular, has implemented comprehensive legislation to increase transparency, combat misinformation, protect user privacy, and hold digital platforms accountable. In some cases, this approach contrasts with the positions adopted by certain U.S. states. Key EU regulations include:

• Digital Services Act (DSA) - Passed in 2022, this EU law sets obligations for digital platforms, including social media, to protect user rights and increase transparency. Requires platforms to promptly remove illegal content. Mandates transparency about how algorithms work and allows external audits. Prohibits deceptive practices, such as "dark patterns," that manipulate user decisions. Establishes severe penalties for non-compliance, with fines of up to 6% of global annual revenue. The DSA aims to create a safer and fairer digital environment for users.
• General Data Protection Regulation (GDPR) - Effective since 2018, GDPR is one of the world’s strictest privacy regulations. Empowers users to control their personal data and requires explicit consent for data collection and usage. Enforces stringent rules on data sharing between companies, with fines for violations of up to 4% of global annual turnover. Protects user privacy and sets global standards for data protection.
• Code of Practice on Disinformation - A voluntary agreement between the EU and major platforms like Facebook, Google, Twitter, and TikTok to combat online disinformation. Key commitments include reducing profits for those spreading disinformation, identifying and labeling false content, and promoting reliable information, especially during crises like pandemics and elections. Aims to limit the spread of fake news and safeguard democracy.
• Digital Markets Act (DMA) - Complementing the DSA, this law regulates major digital platforms considered “gatekeepers.” Prevents dominant platforms from abusing their market position. Requires greater interoperability between platforms and business transparency. Prohibits practices like self-preferencing, where companies prioritize their own services over competitors.

In addition to EU regulations, individual member states have introduced their own laws, such as:

• Germany: The Network Enforcement Act (NetzDG), effective since 2017, requires platforms to remove hate speech and illegal content within 24 hours of being reported.
• France: The Online Hate Law, implemented in 2020, establishes strict rules for removing hate speech on social media.
• United Kingdom (outside the EU): Introduced the Online Safety Bill, focusing on child protection and combating online abuse.

Freedom of Expression and Social Media

Balancing freedom of expression, combating fake news, promoting transparency, ensuring freedom of choice, and facilitating access to accurate information in the age of social media is one of the most urgent challenges of our time. Here are some strategies for addressing this issue:

• Promote Digital Literacy: Encourage critical thinking and fact-checking skills, from schools to community programs. Educate users on how algorithms influence perceptions and choices.
• Strengthen Fact-Checking and Accountability: Support independent and transparent fact-checking organizations to verify the neutrality and accuracy of online information. Require platforms to label verified news and flag content identified as false or misleading.
• Ensure Algorithm Transparency: Mandate platforms to disclose how their algorithms prioritize content and provide users with customizable feed options.
• Protect Freedom of Expression: Establish clear guidelines for addressing harmful content, such as hate speech or incitement to violence, without overstepping into unjustified censorship.
• Improve Platform Regulation: Encourage platforms to analyze flagged content and issue warnings for potentially false information based on evidence, reducing reach without preemptive censorship.
• Foster Ethical Design: Develop social networks that prioritize rational arguments and reality-based interactions over sensationalism.
• Strengthen Privacy and Data Security: Enforce policies that prevent misuse of personal data to manipulate public opinion.
• Encourage Independent Journalism: Invest in local and independent media to provide accurate reporting and foster partnerships between social networks and credible news outlets.

By integrating these strategies, it is possible to create a digital ecosystem where freedom of expression and transparency coexist with efforts to minimize fake news and ensure access to factual information.

Social Media Regulation in Brazil

Progress Over a Decade

The regulation of social media in Brazil has advanced at a moderate pace, with notable initiatives but also challenges and controversies. These factors have sparked debate about whether the actions taken are sufficient and appropriate to address the problems associated with these platforms. Below is an analysis of the progress made, challenges faced, and whether Brazil has taken the right approach in this context:

One key milestone was the Marco Civil da Internet (Civil Rights Framework for the Internet), enacted in 2014. This pioneering law established rights, duties, and principles for internet use in Brazil. It guaranteed freedom of expression and network neutrality while defining rules for removing content, generally requiring a court order. However, while it was an important regulatory framework, it did not address contemporary challenges such as misinformation, hate speech, or content moderation.

Another significant legal instrument is the General Data Protection Law (LGPD), implemented in 2018 and inspired by Europe’s GDPR. The LGPD regulates the handling of personal data, imposing obligations on digital platforms. It increased transparency in data usage and strengthened user rights, but it does not directly tackle issues like content moderation or misinformation.

Recent Regulatory Proposals

Since 2020, the Fake News Bill (PL 2630) has been under discussion. This bill proposes rules to combat misinformation, increase transparency in content moderation, and hold digital platforms accountable. Key provisions include requiring social networks to identify sponsored and automated content (such as bots) and establishing transparency obligations for algorithms. The bill has faced resistance from political sectors and society, with criticisms of its potential impact on freedom of expression.

Another proposal is the AI Legal Framework, which discusses the regulation of artificial intelligence use in platforms, including the algorithms that influence content dissemination. Unlike in Europe, Brazilian platforms are not currently required to disclose how their algorithms prioritize or promote content, limiting user control over the information they consume.

Judicial Activism

Brazil has seen significant judicial activism in areas that should ideally be addressed primarily by the Legislative branch. For instance, the Superior Electoral Court (TSE) has taken measures to combat electoral misinformation, especially during campaigns. However, many legislative proposals face challenges due to political disagreements and a lack of consensus.

While the TSE and Supreme Federal Court (STF) have played an active role in combating misinformation, their actions have sometimes sparked debates about potential overreach. The STF has justified its decisions by arguing the need to protect democracy and the rule of law from threats such as misinformation and attacks on institutions. Critics, however, argue that this judicial activism sometimes leads to authoritarian actions targeting specific political opposition groups, stifling democratic debate.

The lack of an independent civil society body to oversee digital platforms’ activities limits broader societal engagement and the capacity to monitor the government and platforms effectively.

Is Brazil on the Right Track?

In Congress, Brazil has looked to international regulatory models, such as Europe’s Digital Services Act (DSA), to guide its approach. However, the country has not fully addressed criticisms of certain authoritarian and inadequate aspects of these models.

Over the last decade, Brazil has taken important steps, such as enacting the Marco Civil da Internet, the LGPD, and debating the Fake News Bill. These efforts reflect some willingness by the Legislative branch to regulate the internet. However, significant gaps remain in implementing effective and balanced rules for social media regulation. Problems like misinformation and hate speech persist, compounded by enforcement challenges, judicial activism, and political resistance. A key shortcoming lies in the lack of specific, well-debated legislation that protects users, combats abuse, and balances freedom of expression with digital security.

Given these challenges, it remains uncertain whether Brazil’s approach, particularly judicial activism that preempts broader societal debate, is the right one. In a democratic society, the judiciary should not overshadow public deliberation but should instead act based on revealed societal preferences.

The ongoing quest for regulation must focus on transparency, oversight, and the active participation of civil society. These elements will be critical in ensuring that future policies strike a balance between protecting user rights, curbing harmful practices, and preserving freedom of expression. This issue will likely remain a critical topic on Brazil’s public agenda in 2025.