5. Civic space as an enabler of open government in Brazil
This chapter explains the role of civic space as a facilitator of inclusive and effective open government initiatives. It includes a review of the key institutional, legal and policy frameworks governing civic space in Brazil, followed by an analysis of current implementation challenges and opportunities. It also discusses the enabling environment for civil society organisations. The chapter includes concrete and actionable recommendations for the government of Brazil on strengthening the protection and promotion of civic space.
The OECD has been helping countries around the world strengthen their culture of open government by providing policy advice and recommendations on how to integrate the core principles of transparency, accountability, integrity and stakeholder participation into public sector reforms, as discussed. The OECD’s work on civic space – defined as the set of legal, policy, institutional and practical conditions necessary for non-governmental actors to access information and data, express themselves, associate, organise and participate in public life – is a continuation of the same effort and it recognises a healthy civic space as a precondition for and facilitator of open government initiatives. In order to maximise their benefits, and ensure that they achieve their full potential, governments need to guarantee that their civic space is open, protected and promoted through clear policies and legal frameworks that set out the rules of engagement between citizens and the state, framing boundaries, and defending individual freedoms and rights (OECD, 2016[1]).
The OECD approach to civic space
The OECD approach to civic space is anchored in the OECD Recommendation of the Council on Open Government (see Box 5.1). Since 2021 following the creation of the OECD Observatory of Civic Space in 2019, all Open Government Reviews include a chapter dedicated to civic space based on the OECD’s analytical framework on civic space that is applied to all member and partner countries adhering to the Recommendation.
By fully integrating civic space into its governance work, the OECD thus supports an expansive and holistic understanding of open government that explicitly recognises the importance of the enabling environment (see Table 5.1) (OECD, 2020[2]). For example, when open government data (OGD)1 are shared by public entities, it is crucial for citizens, journalists and civil society organisations (CSOs) to be able to safely and securely access the data on an equal basis to achieve real transparency and democratise its use and re-use. Similarly, it is critical to have strong legal protections for individual rights, functioning and funded complaints mechanisms, and rule of law to achieve real accountability. Effective participation is only possible when all members of society have an equal chance of being consulted, informed, listened to and of expressing their opinions. OECD countries are raising the bar in terms of creating a more ambitious and impactful context for the next generation of open government initiatives. To support this, they have adopted an all-encompassing analytical framework for civic space that focuses on four core pillars: 1) civic freedoms and rights; 2) the impact of media freedoms and digital rights on civic space; 3) the enabling environment for CSOs; and 4) civic participation (see Table 5.1). This framework places cross-cutting issues such as equality, non-discrimination and inclusion at its core.
The OECD Recommendation of the Council on Open Government explicitly recognises the need to create an enabling environment for open government initiatives and reforms. Four of the Recommendation’s provisions are particularly relevant to civic space.
Provision 1 recognises the need to take measures “in all branches and at all levels of the government, to develop and implement open government strategies and initiatives in collaboration with stakeholders”.
Provision 2 advocates for the need to ensure the “existence and implementation of the necessary open government legal and regulatory framework”, in addition to establishing oversight mechanisms.
Provision 7 stresses the importance of proactively making available “clear, complete, timely, reliable and relevant public sector data and information that is free of cost, available in an open and non-proprietary machine-readable format, easy to find, understand, use and reuse, and disseminated through a multi-channel approach, to be prioritised in consultation with stakeholders.”
Provision 8 recognises the need to grant people “equal and fair opportunities to be informed and consulted” and for them to be actively engaged in all phases of public sector decision making and service design and delivery”. It also advocates for specific efforts to reach out to “the most relevant, vulnerable, under-represented, or marginalised groups in society, while avoiding undue influence and policy capture”.
Provision 9 discusses promoting innovative ways “to effectively engage with stakeholders to source ideas and co-create solutions and seize the opportunities provided by digital government tools”.
Source: OECD (2017[3]).
Increasingly, this comprehensive and holistic approach to open government is being adopted within the wider open government community. For example, in 2021, the Open Government Partnership (OGP) reported that while almost half of national commitments sought to strengthen public participation, few of them tackled the essential pre-conditions for this, namely the protection of freedom of expression, assembly and association (OGP, 2021[4]). In response, it launched a call for action to push its members to tackle systemic inequalities, protect civic space and enhance citizen participation as part of the “Open Renewal” campaign (OGP, 2021[5]). In light of the above, and as a founding member of the OGP, Brazil has an opportunity to move from the current technical, compliance-driven approach to open government to a more comprehensive understanding that recognises the role of protected civic spaces for all members of society, both on line and offline, and as an enabler of its open government agenda. Such a shift would help improve the design, delivery and outcomes of Brazil’s many open government programmes and initiatives with clear benefits for the government and Brazilian society as a whole (OECD, 2017[3]). Furthermore, it would help to realise recent commitments made during the US Summit for Democracy (Brazil, 2021[6]).
Non-linear progress and challenges
As a young democracy, Brazil has come a long way since 1985 in terms of creating an enabling environment for civil society and effective public participation. Indeed, Brazilian civil society is vibrant and diverse, with expertise on a wide range of issues. It has been partnering with the government of Brazil over the decades, playing an increasingly important role in improving policies, engaging in participatory mechanisms, delivering services and helping to increase transparency. However, this path in support of citizen and stakeholder participation is not linear. This chapter identifies Brazil’s progress, as well as challenges and setbacks.
Data and global rankings from leading international think tanks and academics show that fundamental aspects of civic space such as the protection of civic freedoms and rights, press freedom, and the environment for CSOs are under increasing pressure in Brazil. This is taking place alongside challenges to the rule of law2 and decreasing opportunities for effective civic engagement (see Chapter 6) (World Justice Project, 2020[10]; HRMI, 2021[11]; V-Dem Institute, 2021[12]). Reporters Without Borders places Brazil 111th out of 180 countries in its 2021 World Press Freedom Index (Reporters Without Borders, 2021[13]), for example. Similarly, CIVICUS considers civic space to be “obstructed” in Brazil as of 2021 (CIVICUS, 2020[14]).3 The V-Dem Institute’s Liberal Democracy Index, 4 notes a general democratic decline in its latest report (V-Dem Institute, 2021[12]).5
Yet the legal basis for protecting civic space is fairly well established in Brazil, although with recent notable setbacks and exceptions (see Section 5.2). The Constitution provides far-reaching legal guarantees related to civic space, in addition to regulating the relationship between citizens and the state. It describes its intention to “institute a democratic state destined to ensure the exercise of social and individual rights, liberty, security, well-being, development, equality and justice as supreme values of a fraternal, pluralist and unprejudiced society”. It guarantees all those residing in the country key rights, including access to information; freedom of expression, assembly and association; the right to privacy; press freedom; and equality (Library of Congress, 2020[15]). It also guarantees the defence of indigenous persons’ rights and interests (Art. 129); a range of participation rights for individuals, communities, representative groups and CSOs (Art. 10, 58, 79, 82, 194, 198, 204, 216, 227, 231); and environmental rights on the basis of the environment being a “public good for the peoples’ use” (Art. 225). Some of these guarantees are further regulated by federal laws (Library of Congress, 2020[15]). As such, the Constitution forms the bedrock for civic space protections in Brazil and, potentially, for a more ambitious vision for open government.
Brazil also has a National Programme for Human Rights since 1996, which was reviewed in 2002 and 2009, always in consultation with civil society (Government of Brazil, 2009[16]). Its third edition includes as guiding pillars the “democratic interaction between state and civil society”, “development and human rights”, “universalisation of rights in a context of inequalities”, “public security, access to justice and fight against violence”, “human rights education and culture”, and “the right to memory and truth”. A fourth edition of the programme is being considered and a working group composed of government representatives was established in February 2021 to undertake an “ex ante evaluation” of the national human rights policy and provide recommendations for the improvement of its programmes (Ministry of Women, Family and Human Rights, 2021[17]). The ministry considers this as “a moment of reflection, diagnosis and evaluation” where it plans “to discuss problems, causes and solutions” to be discussed with civil society in a following stage.6
However, despite this robust foundation, implementation of civic freedoms and rights on an equal basis remains challenging. Some obstacles are long term and particularly complex given Brazil’s history, size and administrative organisation, whereas others have become more prominent in recent years. The rest of this chapter discusses the key legal and policy frameworks governing three of the OECD’s core pillars of civic space – civic freedoms and rights, media freedoms and digital rights and the enabling environment for civil society (as per Table 5.1) - followed by a detailed review of current implementation challenges and opportunities with accompanying recommendations. The recommendations provide a range of practical measures that Brazil can take to protect its civic spaces, both online and offline. They are aimed at a broad range of state institutions and some will require cross-government discussions and approaches, in which the CGU is well placed to play a leadership and coordination role. The fourth pillar of civic space – public participation – is discussed in detail in Chapter 6.
Similar to the vast majority of OECD countries, Brazil has adopted legislation to reflect and ratify the provisions of several key international and regional treaties and conventions governing civic freedoms and rights.7 Core rights related to civic space are largely protected in the Constitution and legislation, with some laws even praised internationally (UNIFEM, 2008[18]; IACHR, 2021[19]). Although legislation governing fundamental rights has improved substantially as a result of the 1988 Constitution, there are however concerns about a recent increase in activity by the executive, mainly through the approval of decrees and provisional measures.8 Organisations consulted as part of this review expressed concerns about the number of new bills in congress that address issues of high relevance for citizens, the speed with which they are being proposed and approved, and the few opportunities for non-governmental stakeholders to engage in relevant debates and decision making. They fear that this side-lines the legislature as an independent body in charge of law making where inclusive debate and collaborative drafting had been gaining ground over the years and that hard-won rights related to civic space, including on the protection of civic freedoms in addition to public security and the rights of indigenous peoples – some of which were won after decades of national struggle and debate – are increasingly under threat.9
Freedom of peaceful assembly and association
Freedom of peaceful assembly is protected by the Constitution. Article 5 states that all persons may hold peaceful meetings, without weapons, in places open to the public, without need for authorisation, so long as they do not interfere with another meeting previously called for at the same place, subject only to prior notice to the relevant authority (Item XVI). This is generally in line with legislation found in OECD Member States, although it is rare for the handling of simultaneous or counter-demonstrations to be set out in constitutions. Although more than 70 bills have been proposed over the years to elaborate this right further, none have become federal law (Article19, n.a.[20]), which may lead to inconsistent and potentially arbitrary handling of assemblies in practice. Some municipalities and states regulate practices related to protests, however, such as a 2019 decree from the state of São Paulo that prohibits the use of masks in protests and requires five days’ advance notice from organisers (Legislative Assembly of the State of São Paulo, 2019[21]; Article19, 2020[22]). In 2021, the Supreme Federal Court ruled that meetings and demonstrations are permitted in public places regardless of prior official communication to the authorities (Supreme Federal Court, 2021[23]), which reflects the practice in many OECD countries, and also international human rights standards as stipulated by the UN Special Rapporteur on the rights to freedom of peaceful assembly and association and the Inter-American Commission on Human Rights, whereby the failure to notify an assembly beforehand does not by itself justify an interference with the assembly, especially if it remains peaceful. According to the court ruling, “the constitutional requirement of prior notice is satisfied by the dissemination of information that allows public authorities to ensure that its exercise takes place in a peaceful manner or that it does not frustrate another meeting in the same place”, not having to be an official communication.
Article 5 of the Constitution also foresees total freedom of association for lawful purposes, except for paramilitary association (Item XVII). Associations can be created independent of government authorisation, and state interference in their functioning is explicitly forbidden (Item XVIII); this corresponds with law and practice in many OECD countries and is essential to creating an enabling environment for civic space. Associations have legitimacy to represent their members judicially or extra judicially, when expressly authorised10 (Item XXI). The Civil Code further regulates the establishment and operations of associations, companies and foundations (see Section 5.4.1 for a more detailed review of legal frameworks governing associations) (Government of Brazil, 2002[24]).
Ongoing reviews of the Anti-Terrorism Law (Law 13260/2016) and National Security Law (Law 7170/1983) (see Box 5.2) may also have an impact on freedom of assembly and association.
Freedom of expression/speech
Article 5 of the Constitution sets forth several principles related to freedom of expression, including that no one shall be compelled to do or refrain from doing something except by force of law (Item II) and that manifestation of thought is free, but anonymity is forbidden (Item IV). Expression of intellectual, artistic, scientific and communication activity is also free and independent of any censorship or license (Item IX). Article 220 further determines that the expression of thoughts, creation, speech and information, through whatever form, process or vehicle, must not be subject to any restrictions (Library of Congress, 2020[15]), which is similar to provisions found in constitutions and laws of OECD Member States.
Freedom of expression excludes slander, defamation and injury, which are considered crimes against honour and are subject to imprisonment11 (Government of Brazil, 1940[25]). This is contrary to findings of the Inter-American Court of Human Rights, which has stated that imposing excessively punitive sanctions such as prison sentences in defamation cases is a disproportionate interference with individuals’ freedom of expression.12 The UN Human Rights Committee has also generally urged states to decriminalize defamation13 (although numerous OECD countries still criminalise it). Freedom of expression also excludes discrimination, with some practices also punishable by imprisonment (Government of Brazil, 1995[26]). Article 208 of the Brazilian Criminal Code considers publicly mocking someone on the grounds of belief or religious function, preventing or disrupting a ceremony or the practice of religious worship, or publicly vilifying an act or object of religious worship to be punishable crimes with between one month and one year of imprisonment or a fine. As stated by different UN bodies, such legislation should not be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith14; it follows that this form of interpreting the law would limit civic space and freedom of expression in general. Legislation regulating freedom of expression of thought and information, Law 5250, dates back to 1967. In 2010, the Supreme Federal Court stated that “Law 5250/1967 does not seem to serve the standard of democracy and press that emerged from the drafting board of the Constituent Assembly of 87/88. However, the total suspension of its effectiveness harms press freedom itself” (Supreme Federal Court, 2010[27]).
Ongoing reviews of the Anti-Terrorism Law (Law 13260/2016) and National Security Law (Law 7170/1983) (see Box 5.2) may also have an impact on freedom of expression.
Press freedom
The 1988 Constitution guarantees press freedom, stating that “the manifestation of thought, creation, expression and information, in any form, process or vehicle shall not be subject to any restriction” (Art. 220). The same article specifies that “no law shall contain any provision that may constitute an obstacle to full freedom of journalistic information in any media vehicle” (§1), that “any and all censorship of a political, ideological and artistic nature shall be forbidden” (§2), and that “the publication of a printed communication vehicle is independent of license from the authority” (§6). Regulations on content, ownership and licences are also included, entrusting the executive with the right to grant and renew concessions, permissions and authorisations for sound and image broadcasting services (Art. 220-223). The 2020 OECD Telecommunication and Broadcasting Review of Brazil found that the country had strengthened its legal and regulatory communication framework in recent years, but that important weaknesses remain, including a complex licensing regime that raises barriers to market entry and may lead to regulatory arbitrage (OECD, 2020[28]). Thus, while generally legislation seems to meet the positive obligation to protect media freedoms, guarantee respect for media independence, and promote media diversity that a variety of international human rights bodies have imposed on states, the above obstacles to market entry and thus to media diversity weaken that aspect of civic space.
The Constitution does not mention any exceptions to press freedom, but anonymity is forbidden (Art. 5, Item IV). Slander, defamation and injury are crimes under the Criminal Code (Art. 138-140), as is publicly inciting crime (Art. 286). The only legislation specifically governing press freedom is from 1953, pre-dating the military regime (Government of Brazil, 1953[29]). A second legislation dating from 1967 regulates freedom of expression of thought and information (Government of Brazil, 1967[30]). In a positive step, two bills were introduced in Congress in 2020 to increase protection for journalists and press freedom more generally (Chamber of Deputies, 2020[31]). Bill PL2378 proposes the criminalisation of conduct that prevents the free exercise of journalism, and Bill PL2393 proposes an increase of penalties for physical injuries committed against media professionals in the exercise of their professional duties or because of them. These were being debated by parliament at the time of writing.
Privacy, data protection and cybersecurity
Article 5 of the Constitution affirms everyone’s right to privacy (Items X-XI) and the confidentiality of correspondence, data and communications, except for law enforcement and criminal investigation purposes (Item XII), which is largely in line with legislation found in OECD Member States. The Civil Code also guarantees the inviolability of private life (Art. 21) (Government of Brazil, 2002[24]). In a significant development in October 2021, the Senate approved an amendment to the Constitution (PEC 17/2019) which makes the protection of personal data, including in digital media, a fundamental right. The proposal has yet to be approved by the National Congress.
Brazil’s Personal Data Protection Law (Law 13709) was passed in 2018 and came into force in 2020. Its purpose is to regulate the use and sharing of personal data, in addition to access, and to protect citizens from any misuse of their personal information. It specifies exceptions for the purpose of public security, national defence, state security, criminal investigation and for data originating from abroad under certain circumstances15 (Art. 4, Item III). Exceptions also include the treatment of personal data carried out exclusively for journalistic, artistic or academic purposes (Art. 4, Item II) and for research by public health authorities, with anonymisation or pseudonymisation of the data where possible (Art. 13). This law also reflects data protection legislation in OECD countries, notably in Europe and other Latin American countries, and contains important safeguards to help enhance civic space.
Decree 10222 of 2020 approved the National Cyber Security Strategy for the period 2020-23. It describes the government’s strategic objectives regarding cybersecurity and proposes several actions to achieve them, such as establishing minimum cybersecurity requirements in public procurement, encouraging the use of cryptographic resources for communication of sensitive matters and developing regulations on emerging technologies. Law 14155, approved in 2021, provides heavier penalties for cybercrimes, such as device hacking, theft and swindling committed electronically or via the Internet. This refers to breaking into someone’s electronic device in order to obtain, alter or destroy data or information without the user’s authorisation.
Open Internet
The 2014 Civil Rights Framework for the Internet (Marco Civil da Internet, Law 12965) establishes the principles, guarantees, rights and duties underpinning Internet use in Brazil. It foresees access to the Internet as a right for all and as essential to the exercise of citizenry, and thereby implements standards established by various international actors, which have emphasised states’ obligations to promote and facilitate universal Internet access by having relevant regulatory mechanisms, providing support, promoting awareness, and ensuring equitable access.16 Article 3 of the law states that “the discipline of internet use in Brazil has the following principles: guarantee of freedom of expression, communication and manifestation of thought, protection of privacy, protection of personal data”, among others. These principles are an important step towards protecting and maintaining civic space.
Brazil’s National Security Law (Law 7170/1983) dates from the end of the military rule and defines crimes against national security and political and social order. A bill revoking the law notes that it is “incompatible with the democratic regime embodied in the 1988 Constitution”. Political parties and senators, among others, have voiced their concerns about it violating Brazil’s democratic rule of law, in addition to freedoms of expression and thought. It is also deemed problematic due to its vague wording, harsh penalties and for its perception of protesters as a threat. The Inter-American Commission’s Special Rapporteur for Freedom of Expression has noted with concern the increase in prosecutions of journalists, using the National Security Law. Projects to revoke it have existed since 1991, culminating in 2021, when the revocation process was finally approved by the Chamber of Deputies and the Senate and sanctioned by the President.
The bill revoking the National Security Law (PL 6764/2002 in the Chamber of Deputies and PL 2108/2021 in the Senate)1 included in its proposal the addition of a set of crimes to the Penal Code considered as “crimes against the democratic state of law”. In a joint letter sent in 2021, 67 civil society organisations (CSOs) asked for different sectors of Brazilian society to be included in the development of the bill and raised concerns about the text, including about the use of imprecise concepts that risked the criminalisation of protests and threatened freedom of expression. Public audiences and meetings were held with CSOs as a result, and the text was revised several times, leading to a better definition of terms and the inclusion of an article stating that “it is not considered a crime to criticise constitutional powers or journalistic activity or claim constitutional rights and guarantees through marches, meetings, strikes, crowds or any other form of political manifestation with social purposes”. This was seen as an important achievement by civil society, although some of the other articles in the bill that were drafted with public participation were vetoed. This included articles that classified the promotion of misleading mass communication and the prevention of the right to demonstrate as crimes, with significant implications for the right to peaceful assembly and the protection of civic space more broadly. In September 2021, the bill was enacted into Law 14197/2021.
The Anti-Terrorism Law (Law 13260/2016) defines terrorist organisations and addresses investigative and procedural provisions to counter terrorism. Brazil also recognises that it needs to be revised and Congress is currently discussing more than 20 bills to amend it. However, the Federal Prosecutor’s Office for Citizens’ Rights has expressed concerns about new measures foreseen in some of these bills, stating that “vague provisions brought in by the proposals may impact fundamental freedoms of expression, demonstration and protest”. This and other concerns were included in an appeal by a group of CSOs to the Inter-American Commission on Human Rights in 2019. A letter from United Nations’ rapporteurs to the Brazilian government in 2021 shared reservations about the bills, noting that “this change may lead to limitations on the exercise of fundamental freedoms, including those of opinion, expression, and association and remove protection for civil society actors and human rights defenders”.
One of these bills (Draft Bill 1595/2019) has been opposed by the National Association of Federal Prosecutors and a wide range of police associations.2 It is also opposed by civil society groups, in particular because it enlarges the powers of the executive to take actions against “preparatory acts” of terrorism (Art. 1). Civil society is also concerned about a number of the bill’s articles related to infiltration, surveillance, monitoring and intelligence gathering measures (Art. 5, 6); scenarios in which agents might not be prosecutable (Art. 13); the absence of safeguards for data sharing among different state actors (Art. 14, 15); the absence of external control by civil society of related actions by the state (Art. 17); and the risk of creating incentives for banks and financial institutions to create obstacles to international funding of CSOs (Art. 23) as part of measures to curb financing of terrorism.3 Another bill, 272/2016, also broadens the concept of “terrorism”, using imprecise language to define terrorist acts (Federal Senate, 2016[32]). CSOs note that some of these bills are being classified as urgent and have not been discussed with civil society representatives.
The introduction of broad and imprecise terminology in security and counterterrorism legislation has been central to the closure of civic space and restrictions on civil society across the globe, leading to the arbitrary application of laws and the criminalisation of otherwise peaceful and legitimate activities. OECD. It is crucial that civil society groups are systematically engaged in developing and revising the above laws and in conducting human rights impact evaluations on them in an inclusive and comprehensive manner to ensure they do not negatively impact civic space.
← 1. Bills to revoke the National Security Law changed the numbering and other bills were attached to the text over the years.
← 2. Contributions received on 23 September 2021.
← 3. Contributions received on 20 and 23 September 2021.
Sources: Government of Brazil (1983[33]; 2016[34]; 2021[35]); Federal Senate (2021[36]); Chamber of Deputies (2020[37]; 2020[38]; 2019[39]); Article19 (2021[40]); Pacto pela Democracia (2021[41]); Conectas (2021[42]); Federal Prosecutor’s Office for Citizen’s Rights (2020[43]); Article19 et al. (2019[44]); OHCHR (2021[45]; 2021[46]); OECD (2021[47]); (Supreme Federal Court, 2021[48]); (Vilarreal, 2021[49]). Contributions to the OECD public consultation on civic space received on 28 February 2021 and 30 March 2021.
Equality and non-discrimination
As mentioned above, equality and non-discrimination are cross-cutting themes in the OECD’s civic space work as essential preconditions for inclusive and responsive public participation. Also, the discussion on the representativeness and inclusiveness of data is increasingly permeating the policy discourse across OECD countries,17 thus leading to specific actions to ensure that the data generated by the public entities reflects the realities of all population groups (e.g. minorities, indigeneous communities) so that there are no hidden inequalities in the data (see Chapter 9 on Open Government Data).
As such, this chapter includes a review of frameworks related to Afro-Brazilians, women, indigenous and LGBTI (i.e. lesbian, gay, bisexual, transgender and intersex) persons, as groups that are particularly at risk of discrimination and discriminatory violence. Inclusive policymaking and socio-economic development are among the founding principles of the OECD (OECD, 2020[50]). In the context of Open Government Reviews, discriminatory practices are assessed as they affect people’s relationship with the state, in addition to their ability and willingness to engage with public institutions if they feel undervalued, excluded, unprotected or threatened by them.
One of the fundamental objectives of Brazil as a country, as stated in its Constitution, is to promote the well-being of all, without prejudice as to origin, race, sex, colour, age or any other form of discrimination. Article 5 sets forth that “all are equal before the law, without distinction of any nature”. It further states that men and women have equal rights and duties (Item I) and that no one shall be deprived of any rights because of their religious beliefs or philosophical or political convictions18 (Item VIII). These general equality and non-discrimination principles are in line with those found in the legislation of OECD Member States. The Criminal Code states that injury referring to race, colour, ethnicity, religion, origin, or the condition of elderly or handicapped persons may be sanctioned by one to three years of imprisonment and a fine (Art. 140 §3) (Government of Brazil, 1940[25]). Non-discrimination of specific groups is further regulated by federal law, examples of which are discussed below. Law 7716 of 1989 defines crimes resulting from discrimination or prejudice based on race and colour19. There is no specific mention of sexual orientation in these laws.
Racial equality
The Racial Equality Statute (Estatuto da Igualdade Racial), created by Law 12288 in 2010, was an important step in addressing Brazil’s well-documented history of racial discrimination (Government of Brazil, 2010[51]; Ministry of Women, Family and Human Rights, 2018[52]). It was designed to guarantee equal opportunities to people of African descent, protect ethnic rights, and fight discrimination and other forms of ethnic intolerance (Art. 1). According to the law, any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin intending to annul or restrict the equal recognition, enjoyment or exercise of human rights and fundamental freedoms is considered racial or ethnic racial discrimination (Art. 1, Item 1).
Racism is a non-bailable crime with no statute of limitations and implies discriminatory conduct directed at a certain group (National Justice Council, 2015[53]; Government of Brazil, 1989[54]). Law 7716 of 1989 frames racism in terms of specific actions, such as refusing or preventing access to a commercial establishment, preventing access to social entrances in public or residential buildings and lifts, and denying or preventing employment in a private company, among others. Racial injury is a separate crime, usually associated with the use of derogatory words referring to race or colour with the intention of offending a person’s honour (National Justice Council, 2015[53]). Different from racism, racial injury is bailable, is subject to a statute of limitations and a conditional suspension of sentence is possible. A bill was proposed in 2020 to classify racial injury as a crime of racism, upgrading its status and making it non-bailable and with no statute of limitations. It was still under consideration at the time of writing (Chamber of Deputies, 2021[55]).
Challenges related to racial inequality have long been recognised in Brazil and quotas aimed at reducing educational disparities among people of different races and social backgrounds have been implemented by various governments since 2000. Since 2016, federal public universities are required by law (Government of Brazil, 2012[56]) to allocate at least half of their slots to students from public schools and these should be filled by Afro-Brazilians, indigenous and disabled people, reflecting at a minimum the proportion of the population that each group represents. Quotas for Afro-descendants in entry exams for the public service are also foreseen by law (Government of Brazil, 2014[57]). In 2020, the Superior Electoral Court also decided on affirmative measures to support racial equality in electoral campaigns starting with the 2022 elections (Superior Electoral Court, 2020[58]). In a further positive step, in May 2021 Brazil ratified the Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance.
Gender equality and women’s rights
The first item of Article 5 of the Constitution states that “men and women are equal in rights and obligations”, which reflects the wording of key international instruments ratified by Brazil, as well as the constitutions of many OECD Member States. One of the first legislations affecting gender equality, Law 6515, was introduced in 1977. It instituted the same divorce procedure for men and women (Government of Brazil, 1977[59]). Maternity and paternity paid leave was established in the 1990s with the approval of several laws (Government of Brazil, 1991[60]; 1994[61]; 1999[62]). Affirmative action on women’s participation in electoral processes has been foreseen by law for years (Government of Brazil, 1997[63]). Political parties are also obliged to set aside funds to finance electoral campaigns for their female candidates (Government of Brazil, 2015[64]). Even so, the percentage of Women in the Chamber of Deputies remains at 15% (International Institute for Democracy and Electoral Assistance, 2021[65]), well below the average of 32% across OECD countries in 202120 (OECD, 2021[66]).
An area in which progress has been made is the legal framework concerning violence against women. The main legal framework is Law 11340 of 2006 (the “Maria da Penha” Law), which was considered a milestone in countering violence against women in Brazil when it was introduced (UNIFEM, 2008[18]). The law criminalised domestic violence, with a penalty of up to three years’ imprisonment and no possibility of conversion into fines or public services, which was possible prior to the law. The law also defined other forms of aggression beyond physical violence, such as psychological, sexual, patrimonial21 and moral22 aggression. It created measures to prevent such crimes and to protect victims, including the removal of the victim or the aggressor from a specific location and the possibility of preventive arrest of the aggressor.
Several amendments have been made to this law, including on the preferential care of victims by female police officers (Government of Brazil, 2017[67]), the imprisonment of aggressors for non-compliance with protective measures (Government of Brazil, 2018[68]), and the criminalisation of recording of private or sexual content without the consent of all concerned parties (Government of Brazil, 2018[69]). In a positive step, Law 13104 of 2015 also introduced femicide into the Brazilian Penal Code as a particular category of homicide, thereby increasing the sentence in some cases,23 and making gender-based violence of women more visible. A homicide is now considered femicide when the crime involves domestic and family violence and/or discrimination against a woman because of her sex.
In another positive step, the 2017 Labour Law reform, Law 13467/2017, included an article stating that salaries could not be differentiated on the basis of gender and foreseeing a fine and the payment of the difference in such cases (Art. 461).
Indigenous rights
The Constitution recognises indigenous people’s social organisation, customs, languages, beliefs and traditions, as well as their rights over the land they traditionally occupy (Art. 231). This marked a shift from the idea of integration and assimilation of indigenous culture foreseen in the 1973 “Indigenous Statute” (Government of Brazil, 1973[70]) to one of preservation and protection. In the three decades since the 1988 Constitution was introduced, a series of decrees, amendments and laws have also been passed to regulate the constitutional provisions and to protect indigenous people’s rights, culture and land (Public Prosecutor's Office, 2019[71]; FUNAI, 2020[72]). Decree 1775 of 1996 regulated the demarcation of indigenous land by the state, with a key role given to the federal agency for indigenous assistance, currently the National Indian Foundation. The 2002 Civil Code (Government of Brazil, 2002[24]) removed a reference to indigenous peoples as being “relatively incapable” which had been included in the 1916 version (Art. 6, Item III) (Government of Brazil, 1916[73]). Decree 5051 of 2004 ratified the International Labour Organization’s Indigenous and Tribal Peoples Convention, stating among other things that indigenous and tribal peoples have the right to be consulted about administrative or legislative decisions affecting their collective rights and ways of life, including over their land.
A key bill introduced in 2007 (PL490/2007) and a package of 13 other associated bills since then have sought to change the legal framework governing the demarcation of indigenous land (Chamber of Deputies, 2007[74]; 2021[75]). These include a proposal to establish 1988 as a “temporal mark” for the definition of protected areas, which means that indigenous people seeking protection of their territories had to have been occupying the land in 1988. It also proposes to shift the responsibility for demarcating land from the National Indian Foundation to the National Congress. Another proposal includes the possibility of “contracts aiming at cooperation between indigenous and non-indigenous for economic activities,” including agro-sylvo-pastoral, in indigenous lands, which contradicts a constitutional article that “occupation, ownership and possession” of indigenous lands “or the exploitation of the natural wealth of the soil, rivers and lakes existing therein, are null and void, not producing legal effects, except in the case of relevant public interest of the Federal Government” (Art. 231, § 6) (Government of Brazil, 1988[76]; Instituto Socioambiental, 2021[77]). CSOs have raised a series of concerns about the potential impact of these bills, including that they violate constitutionally guaranteed rights, such as the permanent possession of indigenous lands and the exclusive right to natural resources (Instituto Socioambiental, 2021[78]; APIB, 2021[79]; Indigenous Missionary Council, 2021[80]; de Aguiar, 2021[81]). The package was approved by a commission from the Chamber of Deputies in June 2021 but has not yet been voted on in plenary or by the Senate (Chamber of Deputies, 2021[82]).
LGBTI rights
There is no explicit protective legal framework for LGBTI people in Brazil, although rights for this group have been strengthened over the past two decades. Since 2002, gender reassignment surgery is authorised by the Federal Council of Medicine and is offered by the Brazilian Unified Health System since 2008, for example (National Health Council, 2017[83]). Supreme Federal Court decisions are also notable, including the legal recognition of same-sex unions in 2011 (Supreme Federal Court, 2011[84]; 2011[85]) and the framing in 2019 of homophobia and transphobia practices as a type of racism, covered by Law 7716 of 1989 (Government of Brazil, 1989[54]; Supreme Federal Court, 2019[86]). Government decrees also recognise transvestites’ and transsexuals’ gender identities and allow them to use a different name in the civil registry, including on identity cards (Government of Brazil, 2016[87]; 2018[88]).
Although civic space has a strong legal foundation in Brazil, Brazilians face considerable barriers in exercising related rights in practice, thereby preventing them from effectively participating in policy making and decision making, and in engaging with government institutions on a full and equal basis. This section discusses crucial challenges and recommends ways to address them.
Protecting freedom of peaceful assembly
While the right to freedom of peaceful assembly is guaranteed in the Constitution (see Section 5.2.1), there is no specific legislation detailing what this right includes or how it should be implemented (Peaceful Assembly Worldwide, 2021[89]; Article19, 2014[90]).
In an effort to respond to this gap, in 2017, the Brazilian National Council for Human Rights, the Prosecutor’s Office and the Federal Prosecutor’s Office for Citizens’ Rights participated in drafting Guidelines for Observing Demonstrations and Social Protests, led by the Regional Office for South America of the Office of the United Nations High Commissioner for Human Rights, together with other institutions in the region (Regional Office for South America of the OHCHR, 2017[91]). The document acknowledges protests as a fundamental element of democratic societies and an essential instrument for the protection and promotion of rights, recognising that many rights have been achieved over the years thanks to public expression of collective demands. It presents international norms for demonstrations and social protests, and offers guidelines for citizens monitoring demonstrations. It does not, however, provide practical guidance to organisers nor to public security entities. It is also hardly referenced by civil society or in the media, indicating that it may not be well known, and as a result, may be narrowly used.
The number of protests arising from social discontent has increased in the LAC region since 2014 (OECD, forthcoming[92]). High social inequality and the perception of widespread corruption are some of the drivers of protests across the region. Although the right to peaceful assembly is generally respected in Brazil, law enforcement officials sometimes employ excessive force against demonstrators (Peaceful Assembly Worldwide, 2021[89]). For example, during nationwide public demonstrations against public transport fares in June 2013, documented violations included the excessive and indiscriminate use of lethal and non-lethal weapons, the disproportionate use of force, and arbitrary arrests, in addition to intimidation practices such as recording and photographing of protestors (National Council for Human Rights, 2017[93]; Article19, 2013[94]; 2013[95]). In 2017, protests against labour and pension reforms in Brasilia were met with the use of lethal weapons by the armed forces, which were called upon to contain the demonstrations (Vettorazzo et al., 2017[96]). In the context of the 2018 elections, electoral courts banned protests at several universities, where protests were interrupted by the police and posters and materials removed (Folha de São Paulo, 2018[97]). After several days of unrest, the Supreme Federal Court annulled the decision by the electoral justice and reiterated that “universities are spaces of freedom and of personal and political liberation” (Supreme Federal Court, 2018[98]). In 2021, several anti-government protests in over 100 cities were also met with a violent response from the police (Dielú, 2021[99]; BBC, 2021[100]).
Law enforcement agents are required by law to prioritise less offensive instruments over lethal weapons and to use force following the principles of legality, necessity, reasonableness and proportionality, according to Law 13060 of 22 December 2014 (Government of Brazil, 2014[101]). The use of firearms is prohibited against a person on the run who is unarmed, or who does not present “an immediate risk of death or injury to public security agents or third parties” and training for security agents should include content that enables them to use non-lethal instruments, defined as having a “low probability of causing death or permanent injury, temporarily contain, weaken or disable people” (Articles 2 and 3). Furthermore, when injury occurs, medical assistance must be ensured and there is an obligation to communicate what happened to the person’s family or other indicated person (Article 6). Nonetheless, the use of non-lethal armaments typically used in protests, such as rubber bullets, tear gas grenades and other crowd control weapons, has been disproportionate and reportedly caused severe injury (PHR and INCLO, 2016[102]). The use of rubber bullets has resulted in the loss of eyesight of protestors on various occasions in Brazil (Borges Teixeira, 2020[103]; Tomaz and Araújo, 2018[104]; G1, 2016[105]). CSOs have been calling for a ban on their use based on the fact that they are not accurate and can cause significant injury, including to innocent bystanders (Amnesty International, 2015[106]) (Article19, 2021[107]).
In a positive step, in June 2021, the Supreme Federal Court ruled that it is the state’s duty to compensate media professionals who are injured by police officers during news coverage of demonstrations in which there is conflict between the police and demonstrators (Supreme Federal Court, 2021[108]). This followed an appeal by a photojournalist shot in the left eye by a rubber bullet fired by the military police while he was covering a protest in São Paulo in 2000. The injury resulted in the loss of 90% of his vision.
Lessons may also be learnt from practice in neighbouring Colombia, where the government adopted a notable protocol in 2018 for the co-ordination of actions aimed at ensuring a favourable environment for the exercise of peaceful assembly (Colombian Ministry of Interior, 2018[109]). The protocol lists actions that can be taken by authorities before, during and after protests, to protect the right to peaceful assembly, including on the permitted use of force and in the case of disruptions. It has a section about the role of the police in the context of protests, with information about when and how they should intervene. Civil society verification commissions are foreseen in the protocol with the objective of monitoring and verifying that the right of peaceful assembly is being guaranteed and protected. An evaluation after each protest is also proposed, taking into account analysis and documents provided by civil society.
Recommendations
As a cornerstone of democracy, and a key means for citizens to express their views on matters of public importance, it is key for Brazil to consistently protect the right to peaceful assembly. International guidance in this area states that governments have an obligation not just to refrain from violating the rights of those assembling but to actively ensure their rights and to facilitate and enable assemblies. Even when such gatherings turn violent and participants forego the right to peaceful assembly, they still retain other rights, subject to normal limitations, such as those of freedom of expression, association and belief; participation in the conduct of peaceful affairs; bodily integrity; privacy; and an effective remedy for violations of rights (United Nations General Assembly, 2016[110]). The principles of legality, precaution, necessity, proportionality and accountability are central to the right of peaceful assembly, so that force is only used when “strictly unavoidable”, that there is a formal approval and deployment process for any weaponry and equipment used, and that when the use of force is unavoidable, that its harmful consequences are minimised (United Nations General Assembly, 2016[110]).
Consider developing a detailed protocol, in partnership with civil society, on implementation of the right to peaceful assembly in order to ban the use of indiscriminate force and to ensure a consistently favourable environment for the exercise of this right.
Rules on the use of non-lethal weapons as a last resort could be included (e.g. areas of the body to be avoided, when not to use such weapons, the need to warn people before such weapons are used) in addition to details on actions to be taken in case of violence or conflict without affecting other peaceful demonstrators or hindering their right to protest. It could also include preferred techniques to contain violence, in addition to guidance on methods to be avoided, and a ban on certain types of weapons.
Sustained, specific and compulsory training for police on the contents of such a protocol, including on crowd facilitation, planning, coordination and dispersal methods, will be key.
Make practical information available to citizens regarding their rights when organising public meetings and demonstrations, including on: who has the right to organise assemblies; limitations to this right; any prior notification required; regulations regarding interventions, interruptions or relocations by police; legal frameworks regarding apprehensions and the use of force by police; regulations regarding the use of drones; and other frequently asked questions in the Brazilian context. This could be in the form of a web page, for example, which is extensively promoted and outlines Brazil’s commitment to protecting the right to peaceful assembly, in addition to the duties and responsibilities of protestors.
Ensure that any abuse by police or other law enforcement agent is thoroughly investigated and prosecuted in a timely and efficient manner.
Undertake a thorough review to ensure that relevant subnational legislation is in line with international standards.
Challenges related to the right to association are addressed in Section 5.5.
Protecting freedom of expression
Freedom of expression is another cornerstone of civic space. It is guaranteed under the Brazilian Constitution and the government acknowledges its responsibility in the prevention of crimes against persons exercising their right to free speech (Ministry of Women, Family and Human Rights, 2020[111]). Brazil’s Civil Rights Framework for the Internet, approved in 2014, also guarantees the right to freedom of expression as a pre-condition for the full enjoyment of the right to Internet access (Art. 8) (Government of Brazil, 2014[112]).
However, implementation of this fundamental right has suffered in recent years. Article19’s Global Expression Report 2021, which assesses the state of freedom of expression around the world, indicates that Brazil has fallen from an “open” to a “restricted” environment in the last ten years (Figure 5.1) (Article19, 2021[113]), against a background of the regional score for the Americas also being at its lowest for a decade. Brazil currently ranks 86th out of 161 countries assessed. As a point of reference, the top five countries in the region where freedom of expression is considered “open” are Uruguay, Canada, Costa Rica, Argentina and the Dominical Republic. The bottom 5 where freedom of expression is “in crisis” or “restricted” are Cuba, Nicaragua, Venezuela, Bolivia and Colombia. Brazil experienced the world’s biggest drop in score over one, five and ten years, a decline that has accelerated in the last couple of years. The COVID-19 pandemic consolidated this negative trend, which has also been affected by the rise in mis- and disinformation in Brazil (see Section 5.3.5).
Notes: The Global Expression metric tracks freedom of expression across the world, assessing how free each and every person is to post on line, to march, to teach and to access the information to participate in society and hold those with power to account. Twenty-five indicators are used in 161 countries to create a freedom of expression score for every country on a scale of 1 to 100, placing countries into 1 of 5 categories: open, less restricted, restricted, highly restricted, in crisis.
Source: Article19 (2021[113]).
Interviewees consulted as part of this review confirmed deteriorating conditions regarding freedom of expression in Brazil, with a detrimental impact on civic space, public debate, and civic engagement more broadly. A significant body of research from think tanks, the Inter-American Commission on Human Rights and media outlets illustrates that journalists, members of CSOs, members of trade unions, communicators (e.g. bloggers, radio hosts), indigenous leaders, academics, artists, politicians, and public figures are all facing a restricted ability to air critical views24 (Article19, 2021[114]; Igarapé Institute, 2020[115]; Folha de São Paulo, 2020[116]; IACHR, 2021[19]). Article 19 has noted that 50% of the violations against journalists and communicators that it recorded in 2020 were committed by public agents and 18% were racist, sexist or biased against the LGBTI community (Article19, 2021[113]). Several cases have been reported of people being subjected to investigations and arrest,25 with allegations of defamation and contempt of authority (desacato) for criticising the government (Special Rapporteur for Freedom of Expression, 2021[117]; Souza, 2021[118]; Igarape Institute, 2021[119]; Malheiro, 2021[120]). Other particularly serious cases that have been documented, 20 in total, involved killings, attempted killings and death threats, according to Article 19 (Article19, 2021[113]).
The environment for students and academics to freely express themselves and teach and learn has also been affected. Staff, teachers and students, especially of universities, have experienced censorship in the context of protests and debates. For example, in 2018, police officers entered public and private universities in several Brazilian states seizing materials and banning meetings and assemblies of a political nature (Fórum Nacional pela Democratização, 2017[121]). The rulings by electoral judges that had led police officers to do so were later suspended by the Supreme Federal Court (Supreme Federal Court, 2018[122]). According to the latest Academic Freedom report on Brazil from the Berlin-based Global Public Policy Institute and Center for the Analysis of Liberty and Authoritarianism, threats to academic expression also include significant budget cuts and freezes, judicial orders censoring political debates on campuses, and false statements about the academic community, among others (Hübner Mendes et al., 2020[123]).
Instances of artistic censorship have been observed, including the closure of artistic spaces and exhibitions (Moura, 2021[124]; Prisco, 2019[125]). Interference by authorities with plays, publications and works of art have also been widely reported in the last five years (Bergamo, 2021[126]; Angelo, 2020[127]; Fórum Nacional pela Democratização, 2017[121]). The main targets are often artists or works that express a political opinion, or those linked to identity or social agendas, such as the protection of women’s, LGBTI people’s and AfroBrazilian- rights and movements.26
Recommendations
As with freedom of peaceful assembly, the exercise of freedom of expression is a fundamental component of every democratic society. Freedom of expression strengthens open government by facilitating transparency, accountability and equal and effective citizen participation.
In line with the Constitution, Brazil is encouraged to commit to reversing negative trends in this area as a means of furthering basic democratic norms by facilitating an environment in which pluralistic public debate and freedom of expression are supported. A first step would be a public acknowledgement of negative trends from the highest levels of government, coupled with a series of commitments to reverse them.
As already noted by the Inter-American Special Rapporteur on Freedom of Expression, public officials have a duty to ensure that their pronouncements and actions do not cause harm to those who contribute to public debate (Special Rapporteur for Freedom of Expression, 2021[117]). Public officials are strongly encouraged to refrain from any measures that may limit or censor the expression of views, in accordance with the constitution, and should be held to account where violations occur. A code of conduct or manual, coupled with mandatory training, could help in this regard.
Protecting press freedom, journalists and the media
Journalists and communicators are particularly affected by obstacles to freedom of expression in Brazil. Reporters Without Borders’ World Press Freedom Index for 2021 shows that that Brazil has entered the so-called “red zone” after four consecutive declines, indicating a deterioration of the press environment in the country (Reporters Without Borders, 2021[13]). It now ranks 111th out of 180 countries and territories assessed. As a comparison, the United States ranks 44th, Chile 54th, Argentina 69th, Colombia 134th and Mexico 143rd. Colombia and Mexico are also in the red zone (Figure 5.2). Brazilian expert respondents to the index’s survey reported that journalists practise selfcensorship- for fear of civil lawsuits, criminal prosecution, and professional reprisals or attacks on their reputation. They also view the protection of journalists’ sources as threatened by “political power”, “the military”, “judges and prosecutors”, and “organised crime”.27
Notes: Scores range from 0 to 100, with 0 being the best possible score and 100 the worst. Scores are based on qualitative and quantitative data on pluralism, media independence, media environment and self-censorship, legislative framework, transparency, the quality of the infrastructure that supports the production of news and information, and violence against journalists and media outlets (Reporters Without Borders, n.a.[128]).
Source: Reporters Without Borders (2021[13]).
The government acknowledges its responsibility in protecting journalists at risk because of their profession, and the investigation, prosecution and punishment of those responsible for crimes committed against them and other communicators in its booklet “Aristeu Guida da Silva” (Ministry of Women, Family and Human Rights, 2020[111]). Several initiatives are foreseen in this regard. In a positive development, the Programme for the Protection of Human Rights Defenders (PPDDH) explicitly includes “communicators” since 2018 (now the Programme for the Protection of Human Rights Defenders, Communicators and Environmentalists), defined as those performing “regular social communication activities, of professional or personal nature, even if unpaid, to disseminate information aimed at promoting and defending human rights and who, as a result of acting in this objective, are experiencing situations of threat or violence aimed at constraining or inhibiting their performance or work” (Ministry of Human Rights, 2018[129]). There are currently five communicators registered in the programme, located in the states of São Paulo, Rio de Janeiro, Minas Gerais and Ceará.28
The government is also undertaking more targeted actions for the promotion and protection of communicators (Ministry of Women, Family and Human Rights, 2019[130]). These include a 2018 campaign to promote the visibility and appreciation of communicators, a training session for PPDDH technicians to act and assist communicators delivered in co-operation with several CSOs, and a workshop to discuss violence against communication professionals and propose actions to reduce it organised in partnership with the National School of Public Administration.
The National Human Rights Council, also linked to the Ministry of Women, Family and Human Rights, has a Permanent Commission on the Right to Communicate and to Freedom of Expression. This commission focuses on communicators such as members of community radios or authors of blogs, including those with no professional registration, who need protection to exercise their right to freedom of expression (Ministry of Women, Family and Human Rights, 2020[111]). In 2020, the council organised several meetings to discuss challenges such as disinformation, hate speech, political violence on the Internet and attacks on journalists (National Human Rights Council, 2020[131]). It issued several recommendations, including one in 2019 advising public officials to follow international and national standards for freedom of expression, press freedom and the right to information (National Human Rights Council, 2019[132]). The same document reinforced the importance of a public discourse that contributes to the prevention of violence against communicators and to an environment favourable for the free exercise of journalism and freedom of expression. In 2020, the National Human Rights Council published a public note on the high rate of violence against journalists and communicators in Brazil, recognising an increasingly challenging environment for journalism in Brazil due to an increase in hostility (National Human Rights Council, 2020[133]).
Despite these various efforts, violence against journalists is on the rise. The National Federation of Journalists considered 2020 to be the most violent year since the 1990s for Brazilian journalists, with 428 cases of reported violence – covering physical as well as other forms of violence – against media outlets and journalists (compared to 208 cases in 2019) (FENAJ, 2021[134]) (Figure 5.3). These cases included hate speech, intimidation and censorship, as well as physical aggression and homicide, with 2 journalists killed. By June 2021, two more journalists had been killed (Reporters Without Borders, 2021[135]). Article 19 noted in its 2021 Global Expression Report that journalists are being stigmatised and delegitimised (Article19, 2020[136]). An increase in criminal prosecutions of journalists, stigmatising language, targeted verbal aggression, attacks against journalists and their families using social media and instant messaging applications, physical attacks and threats including kidnapping, judicial actions, and censorship and requests for removal of content are all documented in the 2020 report from the Inter-American Special Rapporteur for Freedom of Expression (Special Rapporteur for Freedom of Expression, 2021[117]).
The digital sphere is particularly affected: The Brazilian Association of Radio and Television Stations also recorded 7 945 virtual attacks per day on social media in 2020, or an average of almost 6 per minute, with negative posts and derogatory remarks about journalism, the media, journalists or the press on Twitter, Facebook and public Instagram accounts (ABERT, 2021[137]). In a survey conducted for this review, 21 out of 23 responding CSOs identified attacks against journalists and hate speech to be two of the main threats to civic space in Brazil today.
Sources: FENAJ (2021[134]; 2021[138]).
Data indicate that such violence is frequently committed against journalists from small media outlets, radio broadcasters and bloggers (Article19, 2018[139]). As is common in many other countries, female journalists are also particularly targeted, and offenses against them often include gender-based hostility, comprising online sexual harassment and threats of sexual violence, insults hurled in the street, and lawsuits seeking moral damages over their reporting (ABRAJI, 2021[140]; Posetti et al., 2021[141]; Article19, 2020[136]; Reporters Without Borders, 2020[142]). In July 2020, a group of CSOs presented a complaint during a session of the United Nations Human Rights Council reporting that female journalists had been victims of hostile public declarations and virtual aggressions by government officials at least 54 times over an 18-month period (Terra de Direitos, 2020[143]; Chade, 2020[144]). An emblematic case was that of Patricia Campos Mello, who was accused of trading sexual favours for information leading to a series of online attacks against her involving disinformation and fake pornographic images, as well as rape threats (Posetti et al., 2021[141]). The cyberharassment- campaign was so violent that she was forced to hire a bodyguard. She sued and won two court cases for moral damage (Reporters Without Borders, 2021[145]; Neder, 2021[146]; Arcoverde, 2021[147]).
Brazil is also among the ten countries in the world with the highest rates of impunity for the killing of media workers, according to the Committee for the Protection of Journalists (CPJ, 2019[148]). This high rate of impunity is recognised by the National Council of the Public Prosecutor’s Office, which has collected official information on all homicides committed against journalists, press professionals and communicators in the exercise of their profession since 1995 in Brazil (National Council of the Public Prosecutor's Office, 2019[149]). Of the 64 cases of homicides analysed, 32 were duly resolved, 2 were partially resolved, 7 were not resolved, 16 were still under police investigation and for 7 cases it was not possible to obtain information. The report acknowledges that many of the masterminds behind crimes against journalists and communication professionals are not held accountable in Brazil.
Recommendations
Acknowledging the challenges described above, it is crucial for Brazil to continue to strengthen existing efforts to protect journalists, in line with measures already identified by the government in its “Aristeu Guida da Silva” (Ministry of Women, Family and Human Rights, 2020[111]), and in consultation with journalists and communicators to address their needs. As part of related efforts, Brazil could:
More effectively promote the PPDDH among journalists and communicators and offer protective measures to all those at risk during the exercise of their profession.
Investigate, prosecute and hold to account those responsible for violence against journalists and other communicators in a timely and effective manner.
Implement other preventive measures such as public communication and information campaigns about the crucial role of journalism in society, and undertake specific and regular training of public officials, and training of police and law enforcement officials. A code of conduct or manual for public officials and sanctions for non-compliance could help in this regard.
Ensure timely and equal access to information and data, including as open data, for journalists and communicators to facilitate their crucial work as intermediaries between citizens and the state, as watchdogs, and as promoters of transparency and accountability (see Chapters 6 and 9).
Media concentration and the risk of political interference
A free and pluralistic media has a direct impact on civic space – and by extension on transparency, accountability and public participation – as it allows diverse opinions and sources of information to circulate and inform national debates and decision making. Media concentration, on the contrary, can hamper balanced and multifaceted conversations and promote one-sided views, thereby igniting polarisation and societal conflicts. Studies observe an association between free press and democracy (Norris, 2008[150]) and between a greater penetration of newspapers, radio and TV and less corruption (Bandyopadhyay, 2009[151]). Countries where much of the public has access to the free press have also been found to have greater political stability and rule of law (Norris, 2008[150]).
With 96% of Brazilian households owning a television (IBGE, 2019[152]), free-to-air (FTA) broadcasting is the medium that reaches the most people and across the greatest distance in Brazil. According to the OECD Telecommunication and Broadcasting Review of Brazil (OECD, 2020[28]), Brazil had 862 nationwide commercial FTA TV channels, 131 nationwide public TV channels (generating own content), 20 874 regional commercial TV channels and 75 regional public TV channels in 2018. Despite the high number of TV channels in the country, audience share is highly concentrated. The three most-watched channels – Globo, SBT and Record – had a 63% audience share in November 2019. The review also notes that public and government broadcasting are not explicitly differentiated in Brazil, neither by law nor in practice. It observes that the seven public FTA channels29 with significant national coverage in Brazil are all owned by government entities and that the main one is under resourced.
The four major newspapers (Globo, Folha, RBS and Sada) and Internet media (Globo, Folha, Record and IG) also have an audience share above 50%, which indicates a high audience concentration (Reporters Without Borders and Intervozes, 2017[153]). Ownership concentration is also high across different sectors of the media industry: TV, print, audio and other media. Grupo Globo, for example, owns key channels in FTA TV (with Rede Globo as the audience leader), cable TV (with content generated by the subsidiary GloboSat, including GloboNews and other channels), Internet (with the largest Brazilian news portal, Globo.com), radio (with Globo AM/FM and CBN among the ten largest audiences), and recording and publishing markets.
The News Atlas, a mapping of journalistic outlets in Brazil, found that there were no local press vehicles in close to 60% of Brazilian municipalities in 2021, meaning that around 34 million Brazilians do not have access to any journalistic information about the place where they live (Observatório da Imprensa, 2021[154]). The situation is worse in the Northeast and North regions, where 66.3% and 69.8% respectively of municipalities had no registered outlet, creating deserts of news. The News Atlas identified 1 170 new digital vehicles which have now become the second largest category in Brazil, behind radio. The print media saw the closure of 200 channels in 2020.
According to Reporters Without Borders and Intervozes (2017[153]), Brazil also presents a medium to high risk of political affiliation and control over media networks and distribution. The authors also warn of a lack of transparency towards the audience, journalists and regulators in terms of who has control over each media outlet and what their interests are. Although the state controls less popular channels, there is also potential for political influence on commercial mainstream media due to conflicts of interest. Some media groups have a public official among their shareholders, while others have family members who are elected politicians, for example (Financial Times, 2018[155]; Fonseca Figueiredo, 2011[156]). Political interference is also a risk through the selective or discriminatory allocation of funds for state publicity, something that has been observed in the country by international organisations, CSOs and the media itself (Organization of American States, n.a.[157]; Reporters Without Borders and Intervozes, 2017[153]). Media professionals, lawyers and sociologists consulted by Reporters Without Borders for the World Press Freedom Index consider the extent of official interference in appointments to director of the TV and radio regulatory agency in Brazil to be at a maximum and find that government advertising is not distributed equitably across different media.30
Recommendations
Fostering media pluralism and autonomy could have a positive impact on civic space and citizen participation more broadly by creating an environment in which informed public debate can flourish. Some of the recommendations proposed in the OECD Telecommunication and Broadcasting Review of Brazil (OECD, 2020[28]) are particularly relevant for civic space, as they promote press freedom, freedom of expression, transparency and citizen’s capacity for more effective participation. These include the need to:
strengthen the national public broadcasting system by ensuring sufficient funding and the editorial independence of public broadcasters.
foster media pluralism and the diversity of regional and local content, including promoting local and community broadcasters and press vehicles.
ensure that the media and regulatory agencies can operate freely from political influence and that funding for state publicity is allocated equitably and transparently across media channels.
Protecting privacy, and ensuring data protection and cybersecurity
Privacy and data protection are core components of civic space as they help to create the conditions for citizens to inform and express themselves freely, in addition to debating ideas. Surveillance by governments can be used for legitimate national security and other purposes such as crime prevention. But it can also violate peoples’ right to privacy, in addition to acting as an obstacle to their ability to freely express themselves, communicate, organise and associate on an equal basis, if misused or applied in an invasive or arbitrary manner. Privacy and data protection thus support the other fundamental components of protected civic space, including in the digital sphere, such as freedoms of expression, assembly, association, press freedom and autonomy, equal participation in public debate and decision making, and the enabling environment for CSOs (see Section 5.4).
The recent introduction of the Personal Data Protection Law and the establishment of Brazil’s National Authority for Data Protection (ANPD) are important advances for the protection of Brazilians’ right to privacy and personal data protection. The ANPD was created in 2020, and is mandated to ensure the implementation of the Personal Data Protection Law, prepare guidelines on the implementation of the National Policy on Personal Data Protection and Privacy, supervise and apply sanctions for noncompliance with legislation, and promote knowledge of relevant regulations and public policies, among other responsibilities- (Government of Brazil, 2018[158]). Decree 10474 of 2020 defines the structure of the ANPD, the Board of Directors, and the National Council for Personal Data and Privacy Protection. The National Council, which is foreseen as a consultative body, is to be composed of representatives from government agencies, civil society, scientific institutions, trade union confederations and the private sector.
One of the first actions foreseen in the ANPD’s 2021-23 Strategic Plan was the implementation of a system for addressing incidents and complaints regarding data breaches (ANPD, 2021[159]). While this was being established, personal data breaches continued to occur, highlighting the importance and urgency of having such a system, so that citizens know who to turn to address them. Recent leaks exposed 220 million31 social security numbers in Brazil and over 100 million phone bills (Bolzani, 2021[160]; Vasconcellos, 2021[161]; Baptista, 2021[162]; Rohr, 2021[163]), but administrative sanctions entered into force only in August 2021 (ANPD, 2021[164]).
Ransomware attacks have also become increasingly common and sophisticated in Brazil (Nogueira, 2020[165]). In June 2021, JBS, a Brazil-based company and the world’s largest meatpacker, had to pay the equivalent of USD 11 million in ransom to end a major cyberattack (BBC News, 2021[166]). The attack had shut down operations across the world in Australia, Canada and the United States. The Brazilian Internet Steering Committee produces guidance material to help users protect themselves from such attacks and to secure their personal information more generally (NIC.BR, 2021[167]; 2021[168]). Information on safety in the digital environment is also made available by the Institutional Security Office of the Presidency, which has a department in charge of “monitoring the national information security activity, including cybersecurity, computer incident management, data protection, security accreditation and treatment of confidential information” (Art. 16-A) (GSI, 2021[169]; Government of Brazil, 2020[170]).
The 2020 decree approving the National Cyber Security Strategy mandates the Institutional Security Office of the Presidency to co-ordinate initiatives across government (Government of Brazil, 2020[171]). The decree notes that Brazil is among the most affected countries by cyberattacks and that its “society is not prepared to use digital tools adequately for cybersecurity”. As part of the strategy, the government recognises the importance of digital literacy and foresees cybersecurity education in the form of capacity building for professionals in the field, training in schools and awareness raising for society more generally.
The International Telecommunication Union’s Global Cybersecurity Index 2020, which assesses countries’ commitment to cybersecurity across the pillars of legal, technical, organisational, capacity development and co-operation measures, ranked Brazil 18th in the world, and 3rd in the Americas (ITU, 2021[172]). The index highlights Brazil’s legislation on cybersecurity as an area of relative strength and identifies technical and organisational measures as areas for potential growth. Under technical measures, it notes the importance of setting up response teams to respond to incidents at the national level using a centralised contact point to promote quick and systematic action. Organisational measures that could be improved include ensuring that cybersecurity is sustained at the highest level of the executive and assigning relevant roles and responsibilities to the various national entities involved.
A challenge for Brazil will be to build a national digital security culture that brings together the various relevant government entities, including the ANPD; the Brazilian Internet Steering Committee; the Institutional Security Office of the Presidency; and the Ministry of Science, Technology and Innovation in a co-ordinated and transparent manner. Digital security is important for all parts of society and as such requires multi-sector, multi-stakeholder arrangements that include the private sector and CSOs, and allow for citizen participation, including from those who may be digitally excluded.
Another challenge will be to ensure that personal data protection efforts focus on protecting people and their privacy rights while safeguarding sovereignty and national security. The Board of Directors is the highest governing body of the ANPD and its members are chosen among Brazilians with an undoubted reputation, a high level of education and high expertise in the field (Art. 55-D §2) (Government of Brazil, 2018[158]; ANPD, 2020[173]). It is composed of five directors, three of whom currently have a military background (ANPD, n.a.[174]; Federal Senate, 2020[175]). Among the 20 most developed economies in the world, military personnel are only found in bodies responsible for data protection and the Internet in Brazil, the People’s Republic of China and the Russian Federation, according to Data Privacy Brazil (Associação Data Privacy Brasil de Pesquisa, 2020[176]). This is a concern for civil society actors, who fear that the ANPD could be used for surveillance purposes (Coalizão Direitos na Rede, 2020[177]). The Rights in Network Coalition, a network of over 40 academics and CSOs working on digital rights in Brazil, has urged a clear separation of the two areas, noting that “privacy and protection of personal data cannot be confused with the defence of national security and the protection of strategic information for the country. On the contrary, surveillance activities conducted by national defence and public security agencies can often put at risk the very rights and guarantees that should be protected by the National Data Protection Authority” (Coalizão Direitos na Rede, 2020[177]).
As in other countries, Brazil has seen the emerging use of information technologies for surveillance and intelligence (OECD, 2021[47]). These include initiatives to enable the access to and sharing of personal data among different entities, including between public and private actors, and to collect and use biometric data. One such example was Provisional Measure 954 issued in 2020 requiring telecom providers to share personal data on subscribers (e.g. name, telephone number and address) with the Brazilian Institute of Geography and Statistics (IBGE). The Supreme Federal Court suspended the measure, considering its “material unconstitutionality, on the main argument of violation of the constitutional rules of human dignity, inviolability of privacy, private life, honour and image of persons, of data confidentiality and self-determination of information” (Supreme Federal Court, 2020[178]).
The creation of a national citizen registry database was also proposed in a decree in 2019, to contain personal data on Brazilians including on family and occupations, as well as biometric data (Government of Brazil, 2019[179]). The stated purpose of creating the registry is to unify citizen identification for the provision of public services and facilitate the sharing of citizens’ data among the public administration (Art. 16). However, civil society actors have voiced concerns, as facial recognition and remote biometric recognition technologies are also able to identify, follow and single people out. An open letter signed by 175 CSOs has called for a global ban on biometric recognition technologies, stating that their use may undermine rights to privacy and data protection, the right to free assembly and association, freedom of expression, and the rights to equality and non-discrimination (Access Now, 2021[180]). According to these organisations, which are also running a related global campaign, “the potential for abuse is too great, and the consequences too severe” and “no technical or legal safeguards could ever fully eliminate the threat they pose”.
A final risk that deserves attention is that of the Personal Data Protection Law being used to reduce the transparency facilitated by the Access to Information Law (Law 12527/2011) (see Chapter 7). These two laws are complementary: one protects what is private and the other ensures transparency for what could be made public, including as open data, within the limits of available regulation on privacy and data protection and in respect of the legitimate interests of individuals. They therefore need to be considered and implemented in sync with one another. The Personal Data Protection Law defined personal data more clearly than before, which could potentially reduce denials of public information on the grounds of secrecy. On the other hand, a CSO specialised in access to information found that 57 requests for information were denied during the first 6 months after the introduction of the law with the justification that they contained personal information (Fiquem Sabendo, 2021[181]). In light of all the efforts to increase transparency over the years, it is important that Brazil ensures that the Personal Data Protection Law is not used as an argument for restricting access to and the publication of information and open data (see Chapter 9) that is in the public interest. As the “custodian” of the Personal Data Protection Law, the ANPD has a crucial role to play in this regard.
Recommendations
Brazil is encouraged to continue prioritising the establishment and operationalisation of the ANPD and safeguard its full independence. In line with earlier recommendations from the OECD, it should ensure that “the rules for appointing the ANPD’s Board of Directors and the National Council for the Protection of Personal Data are transparent, fair and based on technical expertise” (OECD, 2020[182]).
Continued and strengthened efforts to increase digital literacy and strengthen digital capacity at all levels of government are crucial, including for public servants working with digital security, and for society in general. Preventive programmes could be organised in partnership with universities, the private sector and civil society to educate citizens in effectively protecting themselves from cyber threats. These programmes could be funded with the proceeds from the fines applied by the ANPD, currently allocated to the Fund for the Defence of Diffuse Rights (Government of Brazil, 2018[158]).
Establish cross-government collaboration so that the various institutions involved in digital security and in personal data protection matters work together, not in parallel, and that their efforts are complementary, co-ordinated and aligned.
Ensure transparency and create opportunities for the participation of non-governmental stakeholders in building the national agenda on data protection and cybersecurity and related initiatives. Ensure that measures to protect citizens from security threats and to simplify their access to public services through the collection, use and sharing of personal data do not erode fundamental civic freedoms and rights foreseen in the Constitution, thereby eroding civic space.
The ANPD’s Board of Directors would benefit from the inclusion of representatives from civil society with expertise in the field.
Protecting an open Internet: The rise of social media and the threat of mis- and disinformation
As in other countries, Brazilians are increasingly moving their activities onto social media and the Internet and are using these channels as a source of news and information (Figure 5.4), leading to both opportunities and challenges for civic space.
Notes: Reflects what people identify as their main source of news. Data are from more urban areas, rather than a fully nationally representative sample. These will tend to represent richer and more connected users.
Source: Reuters Institute for the Study of Journalism (2020[183]). © Reuters Institute Digital News Report 2020; polling by YouGov.
Government entities have also been using social media, such as Facebook, to communicate with citizens, share information and promote campaigns.32 The Secretariat for Social Communication of the Presidency makes use of social media as a primary channel for its communication, focused on videos and visual material for awareness raising and information sharing (OECD, forthcoming[184]). In 2020, the Office of the Comptroller General put 627 posts on Facebook, 1 045 on Twitter, 403 on Instagram and 317 on LinkedIn.33 Posts typically use language that is easy to understand and include informative content (how to file a complaint), hot content (fresh news) and civic education content. The Chamber of Deputies also uses social networks to facilitate interaction between parliamentarians and society (Chamber of Deputies, 2019[185]; n.a.[186]). Gabinete Digital is a digital platform that allows deputies to use the Chamber’s digital content on their social networks and integrates the deputies’ posts on the Chamber’s portal in real time. In the context of public consultations, a range of government institutions publish information on social media encouraging people to engage.
Along with the opportunities brought by the widespread use of social media comes the threat of its malicious use. Technological advances that allow users to create content easily and without verification, combined with the speed at which this information can be shared with large audiences, create a fertile ground for mis- and dis-information,34 propaganda and hoaxes (Matasick, Alfonsi and Bellantoni, 2020[187]). This is of particular importance to civic space, as it can create an environment wherein factual information and data is difficult or impossible to obtain, thereby hindering informed debate, transparency and effective public participation, in addition to fomenting divisive public discourse and debate and polarising society.
The National Human Rights Council of Brazil recognises disinformation as an important threat to freedom of expression, access to information and press freedom (National Human Rights Council, 2020[188]). Brazil has undertaken initial efforts to monitor the circulation of false and inaccurate information on social media, WhatsApp, emails and telephones. When incorrect claims gain wide public awareness, some public entities publish clarifying notes on their websites (Government of Brazil, n.a.[189]; Ministry of Citizenship, 2020[190]). In a positive step, the Ministry of Health also launched a WhatsApp number to which citizens can send images or texts they have received on social networks to confirm their accuracy (Ministry of Health, n.a.[191]).
Elections in Brazil have been particularly affected by the spread of false material, including through videos, photos and information about candidates, parties and the electoral system (Article19, 2019[192]; Magenta, Gragnani and Souza, 2018[193]). A programme to combat disinformation during the 2020 municipal elections is noteworthy. For the occasion, the Superior Electoral Court partnered with roughly 50 public and private institutions, social media platforms, and fact-checking groups including Google, Facebook, Twitter and WhatsApp, who committed to discourage the proliferation of false content and to improve the identification of practices disseminating misleading content (Electoral Superior Court, 2020[194]). Another element of the programme was “media and information literacy”, which focused on empowering people to identify and check misinformation, and to stimulate understanding about the electoral process (Electoral Superior Court, 2020[195]). The programme was widely acclaimed, including by civil society,35 and in 2021 it became a permanent programme to combat disinformation within the electoral justice system (Electoral Superior Court, 2021[196]).
The COVID-19 pandemic has also been permeated by the widespread sharing of false data and information in Brazil, as in the rest of the LAC region (OECD, forthcoming[92]). COVID-19 misinformation is visible in the form of audio, video, photos and “memes” regarding the disease, the efficacy of treatments, and prevention measures, circulated on social media and messaging groups36 (Article19, 2021[197]; Dhesca Brasil, 2021[198]; V-Dem Institute, 2021[199]). This is one of the issues addressed by the Parliamentary Inquiry Committee, set up in 2021 by the Senate to investigate the management of the COVID-19 pandemic in Brazil (Federal Senate, 2021[200]; 2021[201]).
CSOs and media outlets play an important role in fact-checking and debunking false claims by regularly following statements of national relevance, collecting information on the subject from reliable sources – including official databases and through the Access to Information Law – and consulting specialists. Fact-checking agencies and initiatives such as Aos Fatos (Aos Fatos, n.a.[202]), Agência Lupa (Agência Lupa, n.a.[203]), FakeBook (FakeBook, n.a.[204]) – which is focused on environmental disinformation – and Fato ou Fake from the media channel Globo (G1, n.a.[205]), are just a few of the nongovernmental efforts to combat false information.-
One survey found WhatsApp to be the main channel for spreading false information in Brazil37 (Reuters Institute for the Study of Journalism, 2020[183]). The Brazilian Chamber of Deputies and the Federal Senate conducted a survey of 2 400 Brazilians and found that WhatsApp was used as a source of information “all the time” by 79%, followed by television (50%) and YouTube (40%) (Chamber of Deputies and Federal Senate, 2019[206]). In the same assessment, 83% of respondents said they had already come across false information on social networks and 45% said they had cast their past election vote taking into account information seen on social media.
Bill 2630 of 2020 to combat online disinformation, the so-called “Fake News Bill”, was approved by the Senate in 2020 and submitted to the Chamber of Deputies. It seeks to establish rules regarding the transparency of social networks and private messaging services, especially on the responsibility of providers for fighting online disinformation and on transparency regarding sponsored content. It also proposes sanctions for non-compliance. However, CSOs find that the bill presents risks to freedom of expression and privacy by seeking to create a heavily controlled Internet and excessive user identification requirements that may lead to digital exclusion (Coalizão Direitos na Rede, 2020[207]; Article19, 2020[208]; Open Knowledge Brasil, 2020[209]; ABRAJI, 2020[210]). In 2020, an open letter was published by 47 national and international entities (Reporters Without Borders, 2020[211]) claiming poor formulation of the text, little multi-stakeholder participation and a lack of transparency in the bill drafting process. The letter called for the postponement of the bill and the opening of a “multi-stakeholder task force to enable participatory discussion on how to respond to the challenges of disinformation while respecting Brazil’s international human rights commitments and existing human rights standards”.
The Inter-American Commission on Human Rights and the United Nations sent a subsequent joint letter to the government of Brazil pointing to provisions considered problematic in the bill in respect to the right to freedom of expression (Special Rapporteur for Freedom of Expression, 2021[117]). According to the letter, the law imposes “disproportionate restriction on the circulation of information”, lacks clarity and is “fraught with ambiguity”. An “imposition of excessive charges for the creation and use of accounts in social networks or messaging services” was also noted, including the “obligation to link an account with an identity document and/or a mobile phone number”. Other elements regarding storage of data and content moderation were also raised. The bill was under debate in the Chamber of Deputies at the time of writing.
Recommendations
Tackling the spread of mis- and disinformation is crucial to ensuring that citizens are well informed and can engage in informed and balanced debates on matters of public importance in Brazil. In order to address related challenges, the government could:
Strengthen existing government initiatives to tackle misinformation and expand them across the government. In addition to responding to disinformation, take a more proactive approach by anticipating challenges before falsehood has taken root and responding to them in a timely, proactive and transparent manner (Matasick, forthcoming[212]).
Support and promote efforts by non-governmental actors to fact-check information and data sources, including those from the public sector, and strengthen information literacy among citizens. As suggested in the OECD Public Governance Review of Brazil, establish multi-stakeholder task forces to design and deploy collaborative responses to mis- and disinformation (OECD, forthcoming[184]).
Develop and deploy comprehensive awareness raising, education and communication programmes to the public to increase citizens’ resilience to disinformation. It is important to equip them with the necessary awareness and tools to engage critically with (social) media content; to identify and protect themselves from falsehoods; to look for trustworthy, fact-based sources; and to develop critical thinking when faced with information.
In the context of the “Fake News Bill”, ensure inclusive and participatory discussions, including with expert civil society actors, on how to respond to disinformation challenges while respecting Brazil’s international human rights commitments and existing human rights standards. Ensure greater transparency in the bill drafting process and that the final text of the bill does not restrict freedom of expression and privacy rights.
Countering the digital divide
Brazil has made significant progress in improving Internet access among its population in recent years, comparing well with Latin American, Caribbean and upper middle-income countries (OECD, 2020[28]). In 2019, 74% of the population aged 10 and older used the Internet, compared to 41% in 2010 (CGI.br, 2020[213]). Among the Brazilians who accessed the Internet in 2019, 98.6% did so through a mobile phone. In the same year, 94% of households had a mobile phone and 81% of people aged 10 and up had a mobile phone for personal use (IBGE, 2019[152]). The size and geography of the country present a challenge to further expansion of communication networks and to ensuring digital inclusion, however, particularly in rural and remote areas. Despite recent progress, 20% of people aged 10 and older had never used the Internet in 2019, according to one study (Cetic.br, 2019[214]). In households where there was no Internet use, the reasons for non-use were cited as lack of interest in accessing the Internet (32.9%), the high cost (26.2%) and not knowing how to use it (25.7%) (IBGE, 2019[152]). Among households in rural areas, one of the main reasons cited was the lack of related services (19.2%). A separate survey, Domicílios 2019, found that 28% of households had no access to the internet, a figure that rose to 47% in rural areas. Indigenous persons, and Afro-Brazilian descendants, a majority of whom only have access to the internet on mobile phones, are particularly digitally excluded.
WhatsApp is playing an important role in democratising the use of the Internet in Brazil. With 120 million users in the country, it is the most used communication app (Mandl, 2021[215]). Its popularity is partially due to the unlimited free access offered by most telecom providers, meaning that even those unable to pay to place a regular mobile call or send a text message can send and receive WhatsApp messages (CGI.br, 2020[213]). The possibility of sending audio and video messages also makes WhatsApp a preferred tool among illiterate Brazilians and those who feel uncomfortable typing (Agência Brasil, 2020[216]; Educação, 2019[217]). Three in every ten Brazilians have trouble reading, interpreting texts and performing basic mathematical operations, and are therefore considered functionally illiterate (Fajardo, 2018[218]). The Inaf indicator tracks illiteracy levels in Brazil and, according to the latest survey, among those who are considered functionally illiterate, 86% use WhatsApp, 72% Facebook and 31% have an Instagram account (Inaf, 2020[219]). The government is also increasingly using WhatsApp to communicate with citizens (Government of Brazil, 2020[220]; Ministry of Health, n.a.[191]; Ministry of Economy, 2019[221]).
A detailed analysis by the OECD, Going Digital in Brazil, shows that people located in rural areas, with a low level of education, lower income and who are older than 45 are most typically excluded from accessing digital government services. Programmes to increase digital literacy and the use of information and communication technologies (ICT) in schools are notable but there is a lack of programmes for improving digital skills among adults, beyond those offered in telecentres38 (OECD, 2020[182]).
Recommendations
As recommended in a previous OECD review, Brazil should continue its efforts to expand high-quality broadband networks by fostering investment in infrastructure to underserved regions and populations (OECD, 2020[28]). This is crucial to ensure that as civic spaces move increasingly on line, citizens are able to connect to the Internet to access information and engage with government entities on an equal basis.
While increasing Internet access is a priority, digital literacy efforts, including media and information literacy for adults, are also essential to enable citizen participation and informed engagement. Brazil should continue its initiatives to educate citizens on the basics of digital security, skills and rights and could expand these efforts among adults (OECD, 2020[182]).
The multi-stakeholder nature of the Brazilian Internet Steering Committee is of high importance for an open government, as it allows participation by a variety of actors in Internet policy making, an area that is increasingly relevant for Brazilians. It is important that this inclusive and participatory channel is preserved and that it incorporates voices from a range of citizens, including from vulnerable and marginalised groups, in initiatives to overcome the digital divide.
Protecting equality and countering discrimination
Social inequalities experienced within Brazilian society are particularly complex and are addressed as a cross-cutting issue in this chapter. Initiatives to tackle these inequalities are linked to the protection of civic space as a means of ensuring more equal enjoyment of civic freedoms and rights in Brazil, in addition to participation in politics, decision making and social policy making across all sectors of society, regardless of race, socio-economic position or class, gender, sexual orientation or any other differentiating factor.
Structural racial inequality has deep roots in Brazilian history (IACHR, 2021[19]). For more than three centuries, an estimated 4.9 million Africans were brought as slaves to Brazil, more than to any other country in the world. Brazil was also the last country in the western hemisphere to abolish slavery (in 1888) (Federal Prosecutor's Office, 2017[222]; Telles, 2008[223]; Rossi, 2018[224]; Calegari, 2018[225]).
According to the IBGE (2021[226]), Brazil’s population in 2018 was close to 208 million, officially described as 43.1% “white”, 46.5% “brown”, 9.3% “black”, and 1.1% “yellow” and indigenous. Afro-descendants thus constitute a majority in Brazil (55.8% are “brown” or “black”), but socio-economic indicators show that they are worse off in a range of areas, including employment, income distribution, education and political representation (Figure 5.5). Data collected by the IBGE (2021[226]; 2019[227]) show widespread inequality by race. In 2018, only 3.9% of white Brazilians (older than 15) were illiterate and 24% (older than 25) had completed higher education, compared to 9.1% and 10.1%, respectively, for Afro-Brazilians. Afro-Brazilians represented about two-thirds of the unoccupied and underutilised labour force in 2018 and the average income of those who worked was BRL 10.1 (EUR 2.35) per hour against BRL 17 (EUR 3.96) for white Brazilians. The proportion of Afro-Brazilians residing in homes without basic sanitation was higher in all services assessed, including garbage collection, water supply and sewage systems.39 They had less access to the Internet and mobile phones. Afro-Brazilians were also found to be under-represented in the Chamber of Deputies, state legislatures and city councils, making up only 24.4% of federal deputies and 28.9% of state deputies elected in 2018 (IBGE, 2019[227]). As part of a vicious cycle, discrimination that causes inequality is thus perpetuated as a result of their uneven presence in decision-making positions.
Brazil has long recognised the need to tackle racial inequality and has introduced a range of measures to combat it, especially over the past two decades. The 2010 Racial Equality Statute (Law 12288/2010) and subsequent race-related legislation (Laws 7716/1989, 12711/2012 and 12990/2014, among others) indicate that legal protection against discrimination is improving, providing a strong basis for a cultural change in Brazil. Successive governments have implemented affirmative action programmes in efforts to reverse widespread inequality in the areas of higher education, public sector employment and electoral processes, with notable progress being made. The Ministry of Women, Family and Human Rights reports that “after over 15 years since affirmative actions for higher education were first established, the percentage of Afro-Brazilians that completed undergraduate courses increased from 2.2% in 2000 to 9.3% in 2017” (Ministry of Women, Family and Human Rights, 2019[130]).
The compulsory teaching of Afro-Brazilian history and culture in schools is foreseen by Law 10639 since 2003 and has been included in the official curriculum, especially in the fields of art education and Brazilian literature and history (Ministry of Women, Family and Human Rights, 2019[130]). Social protection policies on cash transfers, housing and health benefits are other notable efforts made by Brazil to address more immediate inequalities and resulting poverty. These various initiatives are fundamental to increasing the presence of Afro-Brazilians, and the representation of their interests, in all spheres of society and public decision making.
Tackling insecurity and violence
Physical violence, and the threat of it, particularly affects certain groups in Brazil, effectively acting as a barrier to their equal participation in public life. Such violence is often anchored in discriminatory attitudes and can act as a form of oppression and intimidation, particularly when state actors are involved. High levels of impunity (see Box 5.5) contribute to the perpetuation of this issue.
It is crucial to understand Brazil’s high rates of violence against the backdrop of Latin America and the Caribbean being the most violent region in the world (OECD, forthcoming[92]). Within this context, among all countries in the LAC region, Brazil has one of the highest rates of homicide, which disproportionately affects males (see Figure 5.5 and Figure 5.6) (UNODC, 2021[228]). Despite a temporary drop of homicide rates in Brazil in 2018 and 2019, figures increased again in 2020, when 50 033 cases of intentional violent deaths were recorded,40 or 23.6 homicides for every 100 000 inhabitants (Brazilian Forum of Public Security, 2021[229]). As points of reference, in 2019, the rate in Argentina was 5.12, in Chile 3.93 and in Colombia 24.95. The highest homicide rates in Brazil are found in the capitals and in the states located in the Northeast and North regions. For example, in 2020, the capital cities of Salvador, Fortaleza and Macapá (in the Northeast and North regions) had rates of 54, 48.5 and 48.2 homicides for every 100 000 inhabitants, respectively (Brazilian Forum of Public Security, 2021[229]).
Afro-Brazilians are disproportionately affected by such violence. Data show that in 2020, they accounted for 76% of victims of intentional violent deaths and 79% of fatal victims of police interventions in Brazil (Brazilian Forum of Public Security, 2021[229]). They were three times more likely to be a victim of homicide than white Brazilians (Ipea, 2020[230]). Socio-economic and demographic vulnerabilities contribute to this high rate, since these populations often live in areas with worse living conditions, less security and higher crime rates (Cerqueira et al., 2021[231]). The reproduction of racial stereotypes by justice and security agents and the lack of public policies to combat the inequalities experienced by this portion of the population are also seen to be reasons for the disproportionate violence they face (Cerqueira et al., 2021[231]).
A range of national plans, programmes and projects have been launched over the last three decades to reduce such violence and enhance public security, but a lack of continuity hampers progress. For example, since the re-democratisation of Brazil in 1985, a new public security plan or strategy has been adopted by every new president41 upon taking office. Systematic assessments or evaluations of the results of previous programmes are not undertaken before new ones are designed, and comprehensive data on which to assess the effectiveness of such programmes are unavailable (Turollo Jr., 2018[232]; Brazilian Forum of Public Security, 2020[233]; Ipea, 2020[230]).
The absence of high-quality, comprehensive and disaggregated official data, including as open data, presents a key challenge to addressing high levels of violence (Ipea, 2020[230]). The Ministry of Justice has made efforts to collect data and information on public security since 2001 and these gained momentum with the approval of the 2018 National Public Security Policy and Plan (Ministry of Justice, n.a.[234]; Government of Brazil, 2018[235]). Some data are publicly available from the National Secretariat of Public Safety through the National System of Public Security Information, but they lack detail and are not disaggregated (Ministry of Justice, n.a.[234]). As part of this review, a number of non-governmental organisations reported difficulties in obtaining data on violence from authorities responsible for public security.42 Part of the challenge is the different methods and rules used for collecting data in different police departments (civil, military and penitentiary police) at state level,43 making it difficult to obtain an overview of violence in the country and to undertake comparative analysis (e.g. across states and cities). In the absence of official comprehensive data, CSOs such as the Brazilian Forum for Public Security have been collecting information from relevant authorities in each of Brazil’s 26 states and publishing them in highly respected reports on public security. These are considered to be the best source of information on violence in the country (Comunitas, 2020[236]) and are used by government entities44 (Ministry of Justice and Public Security, 2020[237]).
In a positive step, the 2018 National Public Security Plan, approved for a duration of ten years, foresaw a Unified Public Security System (Sistema Único de Segurança Pública, also known as the SUSP) focused on sharing data, integrating operations and increasing collaboration across federal, state and municipal public security structures (Ministry of Public Security, 2018[238]; Ministry of Justice and Public Security, 2021[239]). Reported outcomes of the SUSP until 2020 include an increase in arrests, blockage of criminal assets, the dismantling of criminal organisations, tackling of cybercrimes and crimes of sexual exploitation of children and adolescents, which were possible thanks to cross-government dialogue and co-ordination (Ministry of Justice and Public Security, 2020[240]). Academics and non-governmental organisations report that the SUSP has stagnated, however, and that its main mechanisms for integrated and co-ordinated governance between federal, state and municipal levels have not been implemented.45 Lack of co-ordination is a challenge. As of February 2021, five states, including Rio de Janeiro, did not have a public security plan, a precondition for receiving resources from the National Public Security Fund foreseen in the SUSP. The other 22 states had plans, but only 5 of them had formalised these with the Ministry of Justice and Public Security, which would entitle them to national resources (Brazilian Forum of Public Security, 2021[229]).
Violence by state actors
Against the background of general violence described above, violence by state actors is a significant, complex and long-standing historical challenge in Brazil.
Among the 50 033 intentional violent deaths in Brazil in 2020, police interventions were responsible for 6 416, the highest number in years, representing a total of 13% of these deaths (Figure 5.7) (Brazilian Forum of Public Security, 2021[229]). As a comparison, 999 people were killed by the police in the United States in 2019, which has a population 1.6 times that of Brazil (The Washington Post, 2020[241]). Among the 50 033 victims of intentional violent deaths in Brazil, 76% were Afro-Brazilians, and among the 6 416 victims of police interventions, 79% were Afro-Brazilians. Afro-Brazilians living in the periphery and shanty towns (favelas), where crime rates are high, are especially vulnerable (Human Rights Measurement Initiative, 2021[242]). Figure 5.7 illustrates that the proportion of lethal violence caused by state agents in Brazil has been rising since 2013, with a slight downturn in 2020.
Source: Brazilian Forum of Public Security (2021[229]).
The Constitution guarantees “Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property” (Art. 5) and frames security as a social right (Art. 6). It places public security under the state’s duty and everyone’s responsibility, to be carried out by the various public security bodies identified46 (Art. 144) (Government of Brazil, 1988[76]). Brazil has long recognised the challenges of police violence and has implemented a number of legal and policy measures to address it over the years. Law 13060 of 2004 called on public security agents to prioritise less offensive instruments over lethal weapons (Art. 2), and to use force following the principles of legality, necessity, reasonableness and proportionality (Art. 2, Items I-III), for example. The law states that it is not legitimate to use a firearm against an unarmed fleeing person or a person who does not pose an immediate risk of death or injury to public security agents or to third parties (Art. 2 sole paragraph). It also calls for training courses for public security agents on the use of non-lethal instruments (Art. 3).
Law 13869 of 2019 defined crimes of abuse of authority committed by a public agent, public servant or others, whether in the exercise of their function or not. “Conducts described in the law constitute crime of abuse of authority when practiced by the agent with the specific purpose of harming another person or benefiting himself or a third party, or even for mere whim or personal satisfaction” (Art. 1, §1).
The National Public Security Force, a public security co-operation programme between states and the federal government, has been promoting the professional training of its personnel, including on human rights education, differentiated use of force, prevention of racial discrimination and assistance to women (Ministry of Justice and Public Security, n.a.[243]; Ministry of Women, Family and Human Rights, 2019[130]). More than 20 000 officials have been trained over the last 14 years on topics such as “understanding the application of human rights to police performance, recognizing police officers as agents who promote human rights and citizenship and learning the principles of the differentiated use of force”, among others.
Mental stress and pressure faced by police officers due to their profession are widely acknowledged as factors that contribute to the violence. The 2018 law that approved the National Public Security Policy included provisions on a Quality of Life programme to promote and prevent physical and mental health and safety at work for public security professionals and their families (Government of Brazil, 2018[235]). The programme includes actions to promote mental health and combat discrimination and prejudice to be jointly agreed between federal, state and municipal authorities. In addition, the Ministry of Justice and Public Security is carrying out a survey to evaluate the quality of life of public security professionals and inform the planning of public policies in this area (Ministry of Justice and Public Security, 2021[244]).
Initiatives to reduce police violence by other public authorities are also noteworthy. Box 5.3 provides detail on a key intervention by the Supreme Federal Court. The 2020 “Olho Vivo” programme from the government of the state of São Paulo, which foresees the installation of body cameras on its military police officers, was another significant positive step (Government of the State of São Paulo, 2021[245]). The equipment is attached to uniforms to automatically record police activities during work hours, including their locations. Images are transmitted in real-time to dedicated centres and saved so they can be accessed by security and judicial authorities whenever necessary. GPS location facilitates the production of evidence and ensures greater security for officers and transparency in their work. During June 2021, the first month of implementation, cameras were installed in 18 public security groups with a history of high lethality. There were 22 deaths resulting from their interventions, a drop of 54%, compared to the previous month, and the lowest rate since May 2013, when 17 deaths were recorded (Pagnan, 2021[246]).
Police raids are common in Brazilian shanty towns, or favelas, with objectives such as arresting drug dealers, confronting trafficking gangs and deterring fights. As citizens go about their daily life, they are frequently caught in the crossfire of these heavily armed confrontations. The state of Rio de Janeiro has one of the highest rates of lethality caused by the police per 100 000 inhabitants in Brazil (7.2 against a national average of 3 in 2020). The total number of fatal victims of state interventions reached a record high in 2019, at 1 814 (Figure 5.8).
Source: Rio de Janeiro Public Security Institute (2021[247]).
In June 2020, the Supreme Federal Court ordered the suspension of police operations in the state of Rio de Janeiro during the COVID-19 epidemic, “except in absolutely exceptional cases”. Exceptions had to be justified and communicated to the State Prosecutor’s Office, and extra care taken not to put the population, the provision of health services or humanitarian activities at risk.
According to a study by the Federal Fluminense University, the ruling was initially successful in preserving lives, as it significantly reduced the number of fatalities from June to October 2020, without an increase in criminal activity. The study found that the suspension of police operations saved at least 288 lives in 2020 and that there were 31% fewer deaths by state intervention in 2020 than in 2019, the lowest level in the last three years.
Despite the Supreme Federal Court ruling, police raids resumed in October 2020, leading to a reversal of the trend, “with an increase in police operations, and, therefore, in lethality caused by the police and crimes against life in general”. The number of deaths has continued to rise. In May 2021, the most lethal police action ever recorded in the state of Rio de Janeiro took place in the favela of Jacarezinho, killing 27 civilians and 1 civil police officer.
This short-lived experience of suspending police operations during the pandemic and the resulting drop in fatalities provides valuable lessons and metrics to inform policy making in the future.
Sources: Brazilian Forum of Public Security (2021[229]); Rio de Janeiro Public Security Institute (2021[247]); Supreme Federal Court (2020[248]; 2020[249]); GENI UFF (2021[250]); Rede de Observatórios da Segurança (2021[251]); Araujo (2021[252]).
Violence against women
Physical violence against women is anchored in discrimination and is a physical barrier to their full enjoyment of fundamental civic rights. Legislation to tackle violence against women and to increase gender equality has improved substantially in the last two decades (see Section 5.2.6) but obstacles remain, effectively hindering women from participating in public life, including policy and decision making, on an equal basis.
In 2020, 3 913 women were killed in Brazil, 53 453 reported being victims of rape and 230 160 reported domestic violence (Brazilian Forum of Public Security, 2021[229]). Reported rape cases increased by 50% between 2011 and 2019 (Brazilian Forum of Public Security, 2020[233]). As in other countries, actual cases of rape and gender-based violence are likely much higher than those reported, even more so during the COVID-19 pandemic, when confinement restricted access to police stations to report cases (WHO, 2021[253]). Brazil had one of the highest female homicide rates per 100 000 inhabitants in South America in 2018, at 4.3. This is similar to neighbouring Colombia (4.2), but higher than Argentina (1.7), Chile (1) and several other South American countries (UNODC, 2018[254]) (Figure 5.9).
Source: UNODC (2018[254]).
As discussed in Section 5.2.6, Brazil took action to make violence against women more visible and punishable by passing Law 13104 on femicide. In 2020, Decree 10568 established the Intersectoral Committee of the National Plan to Combat Femicide, followed by the launch of a National Plan to Combat Femicide in November 2021. The Plan has five key pillars: the Articulation Axis focusing on knowledge promotion; the Prevention axis focusing on awareness raising; the Combat Axis focusing on public security, justice and accountability; the Guarantee of Rights and Assistance Axis focusing on care for women in situations of violence; and the Data and Information Axis, encouraging research and data, in addition to social control of related policies. In 2020, over one-third of female homicides (1 350 of 3 913) were registered as femicides as a result (Brazilian Forum of Public Security, 2021[229]). The available data on femicides show that in 81.5% of cases, the perpetrator was a partner or former partner of the victim and that 54% of the crimes were committed inside the home. OECD data illustrate that intimate partner violence against women is more prevalent in Brazil than in most OECD countries (Figure 5.10).
Source: OECD (2021[255])
Afro-Brazilian women, who suffer discrimination as women and as Afro-Brazilians, are particularly affected by such violence. They represent approximately two-thirds of the women killed in Brazil (Ipea, 2020[230]; Brazilian Forum of Public Security, 2020[233]). The homicide rate among this category of women increased from 2008 to 2018, while it decreased for white women over the same period (Ipea, 2020[230]). Box 5.4 illustrates concretely how such violence against Afro-Brazilian women can harm their ability to engage in politics and decision making.
Since the introduction of the “Maria da Penha” Law in 2006, various services to assist and protect female victims of violence have been implemented at federal, state and municipal levels (Ligue 180, 2021[256]; Ministry of Women, Family and Human Rights, 2019[257]). There are currently 104 shelter homes offering confidential temporary housing for women at imminent risk of death; 231 specialised reference centres providing psychological and social assistance, legal advice and guidance to women in situations of violence; and 409 specialised police stations for women or specialised units in regular police stations. There are also seven multi-disciplinary centres offering several specialised services for women beyond psychosocial support, including a police station, a public defender, a public prosecutor, a courthouse and childcare (Casa da Mulher Brasileira).47
A “Safe and Protected Woman Programme” was created in 2013 and modified in 2019 (Ministry of Women, Family and Human Rights, 2021[258]). It foresees the implementation of more multidisciplinary specialised centres for women in situations of violence, as well as actions to improve care for victims, integration of data and awareness campaigns aimed at the prevention of violence against women. The programme is targeted at states and municipalities that are signatories of a co-operation agreement with the ministry and that meet at least two of the following conditions: have a body dedicated to women’s policies, are a regional hub or have high rates of violence, and already offer a specialised service (Ministry of Women, Family and Human Rights, 2020[259]). In 2021, the ministry had 36 co-operation agreements in place for this programme48 and planned to make available 25 new units of the specialised centres providing services for women in general situations of violence by 2022 (Ministry of Women, Family and Human Rights, 2020[260]).
Despite the above progress and the fact that measures to protect women in situations of violence are foreseen by law, implementation and the reach of services could be improved. The 104 shelter homes are located in 86 municipalities, which is only 2% of the 5 570 municipalities of Brazil.49 Although every state has at least one specialised police station for women, only 8.3% of the municipalities had this service in 2018 (Agência IBGE Notícias, 2019[261]). The IBGE also found that some protection measures for women have decreased over the years. The percentage of municipalities with an executive body dedicated to women’s policies fell from 27.5% in 2013 to 19.9% in 2018, down to the level in 2009 (Agência IBGE Notícias, 2019[261]). Limited resources and budget cuts were cited as the main obstacles to providing better and more services (Amâncio, 2020[262]; Muñoz, 2018[263]; Loschi, 2018[264]). A study by the Chamber of Deputies shows that only BRL 5.6 million (less than EUR 1 million) out of the BRL 126.4 million (around EUR 21.5 million) foreseen in the 2020 budget law were actually spent on the implementation of public policies for women, including those related to protecting them from violence (Chamber of Deputies, 2020[265]).
Implementation of policies, programmes and laws on violence against in Brazil would benefit from adherence to the OECD’s approach to a whole-of-state governance framework for gender-based violence, which focuses on the need to strengthen public governance systems, centre action around the needs and experiences of survivors/victims, and improve justice and accountability in order to effectively address GBV (OECD, 2021[266]). The following key elements are identified as being key:
Developing a whole-of-state framework with a clear vision to address GBV
Establishing a holistic approach to GBV by outlining differentiated actions and objectives within the framework
Identifying and clearly defining roles for key governmental actors
Creating clear accountability, monitoring, and reporting mechanisms
Engaging with key societal and non-governmental actors and stakeholders
Designing and implementing GBV responses with a survivor/victim-centred approach
Fostering a culture of information-sharing and cross-sector collaboration to address GBV
Ensuring appropriate capacity-building for actors involved in the GBV framework
Explicitly recognising the legal and social needs of survivors/victims
Employing clear strategies to facilitate access to justice for survivors/victims of GBV
Holding perpetrators of GBV to account through multiple justice responses
Documenting and studying patterns surrounding femicides (OECD, 2021[266]).
Afro-Brazilians are generally underrepresented in elected posts. Of the 513 elected to the Chamber of Deputies in 2018 (both men and women), only 125 declared themselves as “black” or “brown”, or 24% of the members of the chamber. Although this is an increase from the previous election in 2014 (20%), it is far from being proportionate to the share of the population they represent. Afro-Brazilian women, who make up 28% of the Brazilian population, are further underrepresented in the chamber, with only 13 seats, or 2.5% of the total. In the Senate, less than 20% of the 81 senators were Afro-Brazilians in 2019 and only 1 was a woman.
They are, however, much better represented at the subnational level. Indeed, there was a record number of Afro-Brazilian candidates for city council in the 2020 elections (51% of all male and 48% of all female candidates). For the first time since the electoral court started collecting information on race in 2014, Afro-Brazilians became the largest group of candidates for elective office in the country. The results of the 2020 elections were also encouraging, with close to one third of the elected mayors and 44% of elected councillors from this group.
This represents significant progress, although Afro-Brazilian female candidates and elected officials are still at risk of becoming victims of targeted violence. In the months following the 2020 elections, several elected councillors and mayors faced discrimination, verbal aggression and intimidation. Ana Lucia Martins and Caroline Dartora, Afro-Brazilian women elected councillors, and Suellem Rosim, an elected mayor, suffered racist targeting on social media and death threats. Erika Hilton and Benny Briolly, both Afro-Brazilian trans women elected councillors, were similarly threatened. Erika Hilton was also stalked inside City Hall and Benny Briolly was forced to leave the country and work from abroad after receiving an email threatening to kill her if she did not resign.
One recent study mapped 327 cases of political violence – the use of violence for political ends, e.g. to delegitimise or disrupt the political participation of certain groups – in Brazil from 2016 to 2020 and found that AfroBrazilian- women politicians are particularly and unequally affected. Such intimidation causes fear and can lead to self-censorship and even resignation from office, severely impacting freedom of expression and inclusive representation. Marielle Franco is one such example; an Afro-Brazilian female councillor in Rio de Janeiro and a human rights activist, she was assassinated in 2018. She had been vocal on women’s and LGBTI rights and an outspoken critic of police brutality. Several suspects have been arrested, but there have been no convictions and the motivation behind the killing remains unclear.
Sources: (Chamber of Deputies, 2018[267]) (IBGE, 2021[226]) (Boldrini, 2019[268]) (Krüger, 2018[269]) (Freedom House, 2021[270]) (Gênero e Número, 2020[271]) (Baptista, 2020[272]) (Rodrigues, 2020[273]) (Agência IBGE Notícias, 2019[274]) (G1, 2020[275]) (Santiago, 2020[276]) (G1, 2020[277]) (G1, 2021[278]) (Geraldo, 2021[279]) (Terra de Direitos, Justiça Global, 2020[280]) (Toledo, 2020[281]) (Sperb, 2020[282]) (Brodbeck, 2020[283]) (Instituto Marielle Franco, 2020[284])
Violence against indigenous land defenders, human rights defenders and environmental activists
Although a series of laws to protect indigenous people’s rights, culture and land was passed in the three decades following the introduction of the 1988 Constitution, the prevalence of violence targeting them and other human rights defenders in Brazil remains high. Often perpetrated in remote areas, such violence is a challenge, as it seeks to override fundamental rights by intimidating and physically silencing individuals and groups, either by destroying their homelands and culture or by killing them (Articulação dos Povos Indígenas do Brasil, 2020[285]). This violence is particularly prevalent in the environmental sector; during the interviews and public consultation50 conducted for this review, the environment was repeatedly cited as an area where civic space is suffering long-term damage affecting transparency, accountability, public participation and fundamental civic rights. This has implications for the vulnerable communities in affected areas, as discussed below, but also for Latin America and the world at large given the Amazon’s critical role in regional and global climate regulation (GEF, 2021[286]).
The Ministry of Women, Family and Human Rights considers the elaboration and implementation of policies for traditional peoples and communities as an absolute priority (Ministry of Women, Family and Human Rights, 2019[130]). It is responsible for formulating, co-ordinating and evaluating affirmative public policies for the promotion of ethno-racial equality and the protection of their rights. Other federal government institutions are also engaged in initiatives for indigenous peoples, which are mostly related to healthcare, education, sanitation, water and electricity supply.
The PPDDH has been implemented since 2004 (Government of Brazil, 2019[287]). It is co-ordinated by the Ministry of Women, Family and Human Rights and had 506 defenders registered at the time of writing.51 The programme foresees regular visits from state agents to affected locations to assess the threat reported and liaison with bodies involved in resolving them, monitoring investigations and complaints, as well as co-ordinating with state security forces for police protection in cases of serious risk (Ministry of Women, Family and Human Rights, 2021[288]; 2019[130]).
The Ministry of Women, Family and Human Rights also receives reports of human rights violations through the National Human Rights Hearing Office (Ouvidoria Nacional de Direitos Humanos), a channel that citizens can use by dialling “100”, using WhatsApp or a mobile application (Ministry of Women, Family and Human Rights, 2021[289]). In 2020, the office received a total of 819 complaints reporting 3 408 violations against indigenous persons (Ministry of Women, Family and Human Rights, 2021[290]). Other than violations reported through the hearing office, there is no centralised monitoring of targeted violence and killings of indigenous persons nor any aggregated government data in this area.
To fill the data gap, a number of national and international CSOs and think tanks have been collecting and publishing data in recent years, by searching and reviewing publicly available information on killings of human rights and land defenders and verifying it with in-country or regional partners. Organisations recognise that their data are likely an underestimate, since many killings are not reported, particularly in rural areas (Global Witness, 2021[291]). According to Global Witness, Brazil is currently one of the deadliest countries in the world for land and environmental defenders, ranking 4th in 2020 with 20 killings, after Colombia, Mexico and the Philippines (Figure 5.11) (Global Witness, 2021[292]). Its ranking has gone down slightly from 3rd in 2019 when 24 activists were killed, 10 of whom were indigenous (Global Witness, 2020[293]). Almost 90% of the killings took place in the Amazon region.
It is important to note that the main aggressors are non-state actors, namely land-grabbers, miners, loggers, gunmen, armed militias and others who take advantage of weak governmental control in remote areas to appropriate land (Articulação dos Povos Indígenas do Brasil, 2020[285]; Amnesty International, 2021[294]; Pastoral Land Commission, 2020[295]). Reports point to a recent weakening of agencies responsible for inspecting and enforcing environmental protection legislation, who have suffered budget cuts, a reduction of activities and discrediting of their work (Federal Prosecutor's Office, 2020[296]; IACHR, 2021[19]; Observatório do Clima, 2021[297]). The situation is aggravated by historical disputes over land and environmental degradation, in addition to deforestation and displacement caused by extractive industries, agribusiness and infrastructure projects (United Nations Department of Economic and Social Affairs, 2021[298]; IACHR, 2021[19]; Abdenur et al., 2020[299]; United Nations General Assembly, 2012[300]).
Note: Global Witness defines “land and environmental defenders as people who take a stand and carry out peaceful action against the unjust, discriminatory, corrupt or damaging exploitation of natural resources or the environment” (Global Witness, 2021[291]).
Source: Global Witness (2021[291]).
Conflict over land and resources is a long-standing historical challenge in Brazil, but in the period 2010-19, these conflicts increased, affecting an increasing number of people (Table 5.2) (Pastoral Land Commission, 2020[295]). Mass evictions and invasions persisted throughout 2020, dispersing communities and sending many into hiding. COVID-19 also forced human rights defenders to come up with new ways of working, since many of the standard protection measures were not accessible due to restrictions on movement (Front Line Defenders, 2020[301]). Before the end of 2020, the Pastoral Land Commission had registered at least 178 invasions of territories in the year, which is especially notable when compared to 2019, when only 9 invasions were registered. The invasions affected 55 821 families; 54.5% of the victims were indigenous, 11.8% were quilombolas52 and 11.2% were described as squatters (Pastoral Land Commission, 2020[302]).
The Missionary Council for Indigenous Peoples’ 2020 annual report (Missionary Council for Indigenous Peoples, 2020[303]) noted that out of 1 298 indigenous lands in Brazil, 829 (63%) are pending documentation or action from the government to finalise the demarcation process and register as a traditional indigenous territory. The report notes an increase in the invasion of such land and accompanying violence. It also documents 829 cases of omissions and delays in land regularisation and 256 cases of possessory invasions, illegal exploitation of natural resources and property damage. As discussed in Section 5.2.6, there are several bills awaiting approval that risk undermining hard-won rights of indigenous and traditional peoples, currently guaranteed by the Constitution and subsequent legislation.
The PPDDH is a critically important initiative, but CSOs report a number of challenges related to its implementation53 (Pastoral Land Commission, 2020[295]; Human Rights Watch, 2019[304]; Article19, 2018[305]). A first concern is the absence of a legal framework for the programme. It is currently regulated by an executive decree, which means that it could potentially be suspended following a change in government (Government of Brazil, 2019[287]). Second, it is only operational in seven states and under development in three others (Ministry of Women, Family and Human Rights, 2021[288]). In some of the states where the programme does exist, there have been discontinuities due to gaps in contracts with the federal government or delays in resource transfers (Brazilian Committee for Defenders of Human Rights, 2021[306]). Third, the programme’s budget has been cut in the last two years, reaching its lowest level since 2015; in 2020, it only received 10% of what was budgeted (Brazilian Committee for Defenders of Human Rights, 2021[306]; Gomes, 2021[307]).
CSOs have also expressed concerns about inadequate responses from the programme to reported threats. The Brazilian Committee for Defenders of Human Rights has interviewed several people included in the programme (Brazilian Committee for Defenders of Human Rights, 2020[308]). Some of them reported that they were not granted a police escort or patrol despite requests, while others reported that a police escort was discontinued, or they only had one once. They also noted that threats were often not investigated and assailants were not removed from their location. Removing an indigenous leader who is under threat from their location for an extended period of time is also considered risky, as it could allow assailants to more easily access land that is no longer being defended.
Violence against LGBTI people
Despite the important legal advances for the LGBTI community discussed in Section 5.2.6, targeted discrimination and violence against them is widespread (Acontece Arte e Política LGBTI+ and Grupo Gay da Bahia, 2021[309]). Between 2011 and 2018, the National Human Rights Hearing Office received 14 162 complaints of violence against LGBTI persons, although this figure likely underestimates the scale of the problem (Ministry of Women, Family and Human Rights, 2019[310]). Reported cases included discrimination against rights on the basis of sexual orientation or gender identity; psychological, physical and institutional violence; and neglect.
The Ministry of Women, Family and Human Rights includes the “development of public policies to combat prejudice and discrimination against LGBT54 people” as part of its mission (Ministry of Women, Family and Human Rights, n.a.[311]). It has a National Secretariat for Global Protection whose attributions include co-ordinating actions and measures for the promotion and defence of LGBT rights, implementing reference centres, disseminating information, and public awareness campaigns aimed at social inclusion of the LGBT population. The ministry sponsors projects for LGBT inclusion in the labour market and trained 447 people in LGBT rights in 2020 to promote employability of this community (Ministry of Women, Family and Human Rights, n.a.[312]; 2020[260]).
A notable measure was the establishment of the National Council to Combat Discrimination and Promote LGBT Rights (CNC/LGBT) in 2010. The council aimed at combating discrimination of the LGBT population and ensuring the inclusion of their demands in public policies at all levels of government (Ministry of Women, Family and Human Rights, n.a.[313]). A study by the Institute of Applied Economic Research (Ipea) found that the council faced many difficulties in 2017 and 2018, including a lack of resources, but played a fundamental role in monitoring the situation of the LGBT population in Brazil and articulating actions to guarantee their rights (Basso Pompeu and Motter, 2020[314]). In a setback, in 2019, Decree 9 883 modified the council and removed the mention of LGBT from its title and text. The new members of the reformed council took office in March 2021 and the internal regulations were approved in July, but activities have not fully resumed yet (Ministry of Women, Family and Human Rights, 2021[315]; n.a.[313]; Government of Brazil, 2021[316]).
Data show that overall, protection for the LGBTI community in Brazil is inadequate. According to a report by the oldest LGBTI rights organisation in Latin America (Acontece Arte e Política LGBTI+ and Grupo Gay da Bahia, 2021[309]), 237 LGBTI+55 people died due to violent attacks in 2020 in Brazil. Despite a decrease in the last two years, there has been an overall increase in lethal violence against this community over the last two decades, up from 130 homicides in 2000. Transgender people, those who present a gender identity different from the one assigned at birth, are particularly targeted by violence. Brazil has the highest absolute number of trans and gender-diverse killings and one of the highest rates among the 28 countries for which data are available. From January to September 2020 alone, 124 trans and gender-diverse people were killed in Brazil, more than twice than in Mexico, which ranks second out of the list of 45. The United States had 24 trans and gender-diverse people killed in the same period, Colombia 16 and Argentina 9 (Transrespect Versus Transphobia, 2020[317]). The National Association of Transvestites and Transsexuals in Brazil notes that the majority of homicides against this group are committed with excessive use of violence and associate more than one method of violence, denouncing elements of hate crime and transphobia (Benevides and Nogueira, 2021[318]).
Public authorities acknowledge that impunity is a significant historical challenge and an important contributing factor to the perpetuation of violence in Brazil, including police violence.1 Brazil also recognises the government’s responsibility and duty “to cease and punish” persons responsible for acts of violence, such as those targeting human rights defenders, for example.
Part of the challenge is the absence of official, comprehensive, disaggregated data on violence, as discussed above. This is compounded by the absence of recent national data on the resolution rate for homicide investigations, which would help to monitor progress. The latest official analysis in this area is a 2012 joint report by the Prosecutor’s Office, the Ministry of Justice and the National Council of Justice. The same report estimates the resolution rate for homicides in Brazil to be between 5% and 8%. It also provides comparative rates for France (80%), the United Kingdom (90%) and the United States (65%). A more recent survey by the National Council of Justice indicates that 32% of criminal cases tried by courts between 2015 and 2018 ended without a verdict, after an average of 8.5 years.
The Ministry of Justice has identified several factors that contribute to low prosecution rates for violence in Brazil. The precarious working conditions of the civil police and criminal investigation services, responsible for investigating and solving the homicides, and the low levels of co-ordination between the various institutions of the criminal justice system are cited as the main reasons. Challenges in gathering evidence are also viewed as barriers to resolving cases. According to the ministry, “the violation of crime scenes (intentional or not) by police officers or by the public is today one of the main obstacles to the use of technical and forensic procedures in homicide investigations”.
Another challenge raised by researchers and civil society for the investigation of killings resulting from police operations is that these are often registered as “acts of resistance”, a classification used for the death of a civilian following a confrontation with the police, with the police reporting the act as self-defence. A 2013 study of 707 lethal victims of “acts of resistance” in Rio de Janeiro between 2005 and 2007, found that 355 police enquiries had been opened (some covering more than one victim), but only 19 of them had made it to a justice court three years after the events. Of these 19, 16 came with a request for filing of charges from the Public Prosecutor's Office and only 3 actually contained charges. The study explores several obstacles to the proper investigation and prosecution of these killings, including that bodies are removed under the allegation of rendering assistance and that crime locations are claimed as unsafe to perform forensic examinations.
A further obstacle to independent and impartial investigation of killings by the military police, which is in charge of preventive policing and the preservation of public order, is the granting of military jurisdiction for these crimes. Law 13491 of 2017 states that intentional crimes “against life committed by military personnel of the Armed Forces against civilians will fall under the jurisdiction of the Federal Military Justice if committed in the context of: I) performance of attributions established by the President or by the Defence Minister; II) actions involving the security of a military institution or military mission, even if not belligerent (…); or III) military activities, peacekeeping operations, law and order, or subsidiary duties”. However, judicial rulings expanding the application of this law beyond the armed forces, thereby granting military jurisdiction over crimes committed by military police, have been reported. The Inter-American Commission on Human Rights has repeatedly stressed that military courts are not competent to investigate, prosecute and punish perpetrators of alleged human rights violations and has recommended countries that still have a military criminal justice system reduce the scope of that jurisdiction to ensure that it is “exceptional, relating only to specifically military legal interests (bens jurídicos)”. More recently, the United Nations Committee on Enforced Disappearances has noted that jurisdiction is transferred from civilian to military courts in Brazil in cases of intentional crimes against life by military personnel against civilians (Committee on Enforced Disappearances, 2021[319]).
In an effort to redress this historical and complex challenge of impunity, the National Public Security Policy and Plan approved by the government of Brazil in 2018 explicitly identified the need to resolve homicides as a means of reducing violence. An important element is the focus on joint, co-ordinated, systemic and integrated action by public security agencies at the federal, state and municipal levels, in co-ordination with society. To increase transparency, it also foresees studies, statistics and indicators to support the formulation, implementation, execution, monitoring and evaluation of the policy. Recent data on the resolution of homicide investigations would help to assess the effectiveness of the National Public Security Policy and Plan and to further improve its implementation.
← 1. Interviews with the Public Defenders’ Office on 10 June 2021, National Justice Council on 22 June 2021 and Supreme Federal Court on 19 July 2021.
Sources: Ministry of Justice (2014[320]; n.a.[234]); Chamber of Deputies (2019[321]; 2012[322]); National Council of the Public Prosecutor’s Office (2012[323]); Ministry of Women, Family and Human Rights (2019[130]); National Justice Council (2019[324]); Federal Senate (2016[325]); Government of Brazil (1940[25]; 2017[326]; 2018[235]); Misse et al. (2013[327]); Conectas Direitos Humanos (2021[328]); IACHR (2021[19]).
Recommendations
Inequality, related violence and the threat of violence are direct barriers to citizens’ equal enjoyment of civic space in Brazil. There is a wide range of opportunities for public entities to build on and strengthen existing efforts to stem the violence and protect citizens in support of greater transparency and accountability and to facilitate more inclusive civic participation:
General violence and violence by public security agents:
Step up the implementation of the Unified Public Security System, including cross-governmental co-ordination and the establishment of minimum quality standards for the generation, collection and publication of data and procedures on tackling violence. Official up-to-date, comprehensive, standardised, country-wide data, including as open data, would facilitate the monitoring of violence and impact evaluations of measures to stem it, in addition to enhancing transparency and accountability. Disaggregation and granularity are key, including by sex, age, place of origin, place where the violence took place, racial origin, the date of the violence and details, where relevant, of state involvement. Progress in this area could be included as part of a new commitment to civic space and data transparency and accountability in Brazil’s OGP national action plans.
Strengthen measures to prevent excessive use of force thorough improved, specific and regular training for public security agents with a focus on human rights, the importance of recognising and avoiding practices based on stereotypes and discriminatory bias, and differentiated and proportionate use of force.
Ensure all public security institutions have programmes to improve working conditions for public security agents, including clear and transparent criteria for promotion and an organisational structure to evaluate performance.
Systematically evaluate the impact of public security legislation, policies, programmes and initiatives (from federal and state levels) to understand their impact, identify areas for improvement and assess the potential for their expansion.
Ensure that acts of violence committed in connection with interventions by public security agents are routinely and thoroughly registered, investigated and prosecuted in an impartial manner, even when there is no formal criminal complaint. Encourage and facilitate the documentation and submission of complaints by civil society and relatives, engage constructively with them as part of joint efforts, and ensure that they are regularly updated about the results of investigations. In line with its constitutional mandate, the Prosecutor’s Office could carry out external control of police activity and use of force, and an independent mechanism could be mandated to investigate and prosecute such violence.
Ensure that justice system institutions have adequate and predictable financial, technical and human resources to effectively investigate, prosecute and punish those responsible for violence in a timely and effective manner. Ensuring that criminal investigations are adequate, impartial, effective and exhaustive and that they start without delay is key.
As already foreseen by law, improve monitoring and publish regular and transparent data on the status and resolution of homicide cases with a view to increasing transparency and accountability and facilitating oversight. Step up the implementation of accountability initiatives foreseen in the National Public Security Policy and Plan.
Strengthen and increase the capacity building of police to assist them to adequately isolate crime scenes and understand the importance of preserving them for investigation and resolution of crimes.
Violence targeting at-risk groups:
Systematically monitor violence, particularly against at-risk groups, and publish regular disaggregated data about the situation in Brazil to increase transparency and accountability. Keeping track of violence implies making sure that public entities in charge of generating data on these areas better coordinate to avoid potential data discrepancies and improve standardisation (Article19, 2018[329]), while also protecting personal data. It is also important to ensure that these data are shared in open data formats in a systematic fashion by relevant authorities in the central open data portal (dados.gov.br).
Step-up efforts to prevent violence and protect at-risk groups and ensure adequate and predictable funding for protection measures and programmes already foreseen by law.
Carry out an extensive and long-term campaign to raise awareness among citizens about their rights, programmes to protect at-risk groups and legislation regulating the use of force by public security agents.
Include at-risk groups in discussions about new legislation, programmes and policies on violence and insecurity and in evaluations of these.
Ensure systematic and regular evaluations of the impact of protection programmes, using data to assess their effectiveness and improve them over time. As part of such evaluations, engage non-governmental actors, including CSOs with expertise in the relevant area and individuals from groups targeted by the relevant programme.
Consider creating a Special Rapporteur position to protect at-risk groups, raise awareness about the risks they face and support fundraising for related protection programmes.
Invest in the implementation of prevention and protection measures for female victims/survivors of violence as foreseen in legislation, policies and action plans, including by ensuring adequate resources and geographical coverage of services and in line with the OECD’s approach to a whole-of-state governance framework for GBV.
Carry out an extensive and long-term educational programme to raise awareness about violence against women – for male and female adolescents in addition to adults – and encourage reporting of sexual crimes. Develop the content of related programmes in partnership with civil society.
In line with transparency commitments, publish official, regularly updated data on the number, capacity and location of shelters, specialised centres and other protection services foreseen by law.
Violence against environmental activists, human rights defenders and indigenous land defenders:
Establish a legal framework for the programme to ensure its sustainability and expand it to all states in the Amazon region. Ensure the programme’s continuity through regular and adequate resource transfers.
Strengthen responses to reported threats in consultation with human rights and land defenders, in addition to expert CSOs.
Improve co-ordination among entities involved in the programme, including CSOs with expertise in relevant issues and direct access to human rights defenders and their communities.
Resume the demarcation and protection of indigenous lands in line with the Constitution and as part of a renewed focus on protecting civic freedoms and rights, civic space for all, and the rule of law more broadly. Increase transparency and effective and inclusive public participation in discussions around new bills that relate to the environment and ensure they do not threaten indigenous rights.
Ratification of the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean, also known as the Escazú Agreement,56 would signal a renewed commitment to individual rights and help address some of the above challenges (ECLAC, 2021[330]; United Nations Economic Commission for Latin America, 2018[331]). Brazil played an important role in the negotiations that resulted in the agreement and signed it in September 2018.
Violence against LGBTI persons:
Consider the development of a legal framework and public policies specific to LGBTI persons to help contain violence targeting this group and to tackle discrimination and inequality.
Continue promoting LGBTI rights and ensure the allocation of adequate funding and trained staff to implement LGBTI programmes and policies and to support the National Council to Combat Discrimination.
CSOs contribute to society in many ways, including by educating the public, providing basic services, protecting the environment, defending the interests of vulnerable groups, conducting social research and analysis, and acting as a public watchdog. An enabling environment is central for promoting their effectiveness and ability to operate in a free and autonomous manner. A conducive legal and policy environment safeguards freedom of association and impacts CSOs’ ability to reach their full potential and maximise their impact (OECD, 2020[332]).
Legal and regulatory frameworks for civil society organisations
Freedom of association, CSO registration and operations
As discussed in Section 5.2.1, Article 5 of the Brazilian Constitution guarantees freedom of association for lawful purposes, with the exception of paramilitary associations (Item XVII). The process for creating an association or a foundation is established in the Civil Code (Law 10406/2002, Art. 53-61) and in the Public Registries Law (Law 6015/1973, Art. 114-121). According to these laws, associations must be registered in a notary’s office, where they are asked to provide their bylaws, act of constitution and other information, such as the name of the association, purpose and office address. Associations also need to register at the revenue service (receita federal) to obtain a tax number (CNPJ), and ensure compliance with tax matters, including bookkeeping and annual tax declarations.
Other types of CSOs are governed by separate legal frameworks, such as trade unions (Government of Brazil, 1939[333]), consumer groups (Government of Brazil, 1990[334]) and charities (Government of Brazil, 2009[335]). There are two additional pieces of relevant legislation for CSOs: 1) a public interest designation (Government of Brazil, 1999[336]), given to certain non-profit non-public entities57 providing tax deductions for donations made to them; and 2) a certification (Government of Brazil, 2009[335]), exempting the organisation from social contributions on staff salaries and allowing the receipt of public funds as social subsidies.
The Civil Code (Government of Brazil, 2002[24]) also establishes that associations may not have an economic purpose (Art. 53), but does not clearly state whether they can engage in commercial activities to maintain their operations. However, according to the Order of Attorneys of Brazil (OABSP, 2011[337]) and the Brazilian Association of NGOs (ABONG, 2015[338]), it is possible for CSOs to raise money commercially as long as the activity is foreseen in its bylaws as a means of financing its operations.
Regulatory Framework for Civil Society Organisations
The Regulatory Framework for Civil Society Organisations (Marco Regulatório das Organizações da Sociedade Civil), known as the MROSC, was established by law in 2014 (Government of Brazil, 2014[339]) and put into practice in 2016 (Government of Brazil, 2016[340]) to regulate partnerships between the public administration and CSOs. According to the Ministry of Citizenship, the framework aims to improve the relationship between CSOs and the state, to stimulate democratic public management, and to value organisations as partners in the guarantee and realisation of rights (Ministry of Citizenship, 2019[341]). The framework clarifies the concept of CSOs as entities that are non-profit, non-public and that use their proceeds solely for the achievement of the organisation’s purposes as defined in its bylaws. It also includes co-operatives and religious organisations that are engaged in activities in the public interest and with a social function. Partnerships covered by the MROSC can be signed at the national, state or municipal level and can include activities and projects. The MROSC explanatory booklet prepared by the Secretariat of Government of the Presidency notes the possibility of three kinds of legal partnership: 1) memorandum of assistance, to support initiatives designed by CSOs themselves and to provide them with greater autonomy; 2) memorandum of collaboration, for execution by CSOs of services conceived by the government; and 3) co-operation agreement, for partnerships that do not involve the transfer of financial resources, such as the exchange of knowledge (Secretariat of Government of the Presidency, 2016[342]). According to the MROSC, in order to engage in a partnership with the government under the framework, CSOs need to present certificates of legal standing, fiscal regularity, and compliance with social security and tax obligations. Organisations can engage as a network, but the signatory CSO needs to ensure the legal and fiscal regularity of the executing organisations.
The MROSC standardised and simplified the rules for partnerships between public entities and civil society, and brought greater transparency regarding the selection and contracting process, project execution, distribution of funds, reporting of results and termination of partnerships (GIFE, n.a.[343]; International Center for Not-for-Profit Law, 2021[344]; Leichsenring et al., 2020[345]). The process of drafting the law was also considered a good practice, due to high levels of civil society engagement, strong leadership from the executive and support from several parties in the National Congress (EuropeAid, 2015[346]). Following the development of the MROSC framework, the Secretariat of Government and the Ipea undertook an online mapping of CSOs (Ipea, 2020[347]) to increase transparency. The online platform “Mapa das OSC” is continuously updated and integrates official databases and information provided directly by CSOs on areas of operation, regional distribution, projects and funding as part of a notable effort to increase the transparency of information related to CSOs in Brazil (Ipea, 2020[347]). To encourage organisations to fill out their data, the government recently created a quality seal (Ipea, 2021[348]). The seal is symbolic and varies according to the percentage of data completed by a CSO. A bronze seal is given to CSOs that have 50-70% of the information filled out, the silver seal for 71-90%, the gold seal for 91-99% and the diamond seal for CSOs that fill out 100% of the fields available on the platform. The MROSC Law applies to all levels of governments and allows states and municipalities to adapt it to their own context and specificities and to regulate it with their own decrees. Since the law was approved 7 years ago, 19 out of the 27 federative states (Plataforma MROSC, n.a.[349]) and several municipalities (Plataforma MROSC, n.a.[350]) have passed legislation to implement it.
The vital role of Brazilian civil society organisations
Although the term CSO was not used at the time, Brazil already had associative projects in the 1950s, through which civil society organised itself (Mendes, 1997[351]). From 1966 to 1985, Brazil was ruled by the military and a large number of the CSOs that emerged in that period were advocacy organisations focused on the defence of rights (Mello, Pereira and Andrade, 2019[352]). They were often critical of the government and of the few opportunities for dialogue with it at the time. The 1988 Constitution served as the first formal framework for relations between the state and civil society, as it recognised citizens’ participation in the design, implementation and “social control” of public policies. “Social control” implies the effective participation of society in overseeing the application of public resources and in formulating and monitoring the implementation of policies (Office of the Comptroller General, n.a.[353]). The Constitution created official spaces for this civic participation, such as the councils that are discussed in Chapter 6.
The 1990s saw a significant increase in the number of CSOs, with 201 389 new organisations registered between 1991 and 2000, against 88 147 in the previous decade (Ipea, 2018[354]). CSOs in the period post-1990 were mostly focused on service delivery, executing projects and acting as strategic partners in government programmes. The Rio-92 conference on the environment, which took place in Brazil, helped popularise the term “non-governmental organisations” in Brazil (Calegare and Silva Junior, 2009[355]). In the 2000s, socio-state relations were strengthened, as participatory structures such as councils, conferences and forums gained ground and expanded (Mello, Pereira and Andrade, 2019[352]). Civil society representatives became more present in government spaces and in policy making. Another 277 452 organisations were created between 2001 and 2010 and about 25 000 have been created every year since (Ipea, 2018[354]). The approval of the MROSC in 2014 formalised CSOs’ position as partners of the state in executing activities in the public interest.
According to the CSO mapping platform (Ipea, 2021[356]), 815 676 registered CSOs58 existed in Brazil at the time of writing. Close to half of them work on development and defence of rights, followed by religious initiatives, and culture and recreation (Figure 5.12).
Source: Ipea (2020[347]). Mapa das Organizações da Sociedade Civil, accessed on 6 September 2021, https://mapaosc.ipea.gov.br/
The latest detailed study of the profile of the CSO sector in Brazil dates back to 2018 (Ipea, 2018[354]). It shows that 83% of Brazilian CSOs have no formal employees and another 7% have up to two formal employees, totalling 90% of CSOs with no more than two formal staff. Nonetheless, the sector’s economic importance in the labour market is notable. According to the study, the number of people formally employed by CSOs, excluding volunteers, is equivalent to 26% of the number of people employed in the public sector. The average salary of CSOs’ formal staff was BRL 2 869 (or EUR 732.45), or 3.2 times the minimum wage. CSOs with higher numbers of formal staff are mostly focused on health, social assistance and education. The level of education of staff varies per field of operation, with 67% having completed higher education in CSOs focused on education and research, against 15% in those dedicated to sports and recreation. Foreign CSOs are also present in Brazil. Ninety-four were registered in 2021, 23 of which were branch offices and 71 head offices, mostly located in the Southeast and Northeast regions (Ipea, 2021[357]). Foreign CSOs are mainly from Germany, Italy, Spain and the United States and half of them work on the defence of social rights.
Medium- and large-sized organisations are often recognised for their expertise on specific issues, producing research and data that generate public knowledge and empower citizens to engage in public policy in a more informed way (Mendonça, Alves and Nogueira, 2014[358]). Some organisations have professionalised to the point of becoming national references, such as the Brazilian Forum for Public Security on public security, as discussed in Section 5.3.6.1 (Government of the State of Ceará, n.a.[359]). CSOs have also stepped in to help fill gaps, for example in the protection of human rights defenders. They provide resources and services such as installing cameras, building protective walls and hiring legal counsel to protect defenders against threats (Brazilian Committee for Defenders of Human Rights, 2021[306]). Other CSO initiatives have helped the government to reduce spending and identify fraud (Government of Brazil, 2021[360]), highlighting the value of partnerships between the state and civil society. Some of these results were possible thanks to the transparency portal and Open Data and Access to Information Laws (see Chapter 7), again illustrating the importance of a protected civic space where CSOs can play their various roles in society.
CSOs of all sizes co-ordinate through networks and platforms to optimise their capacity and resources and to increase their impact (APIB, n.a.[361]; Plataforma MROSC, n.a.[362]; CONAQ, n.a.[363]). This allows collaboration between larger, more centralised organisations and grassroots ones, with the grassroots ones providing experience and perspective to their peers in capitals who inform decision-making fora and feed results back to the local level. These networks also support capacity building of members (Fundação Grupo Esquel Brasil, n.a.[364]; Instituto Atuar, n.a.[365]) and are relevant for fundraising, since applying as a network increases the reach and impact of projects.59
Brazilians also associate informally as groups of citizens, and within collectives and social movements to advance specific demands. These do not necessarily have a legal personality and often communicate using digital platforms (FASE, 2020[366]). Social movements have always existed in Brazil, but new agendas, actors and tactics are transforming the sphere (Mendonça, Alves and Nogueira, 2014[358]). The rights of women, Afro-Brazilians and LGBTI people are some of the main contemporary themes. These movements are organised in a more horizontal and decentralised manner than formal CSOs and are characterised by virtual activism using social media as a means of communication, articulation and the dissemination of ideas and information (Ferraz, 2019[367]). Informal civil society has also played an important role during the COVID-19 pandemic, collecting and distributing donations, food, hygiene products, Internet credit for virtual classes, and other goods for those most affected by the virus (Pitasse, 2020[368]; da Cruz, 2021[369]).
To conclude, Brazilian civil society has flourished over the years and the CSO landscape today is diverse, vibrant and offers expertise on a variety of issues. CSOs have been partnering with the government at national, state and municipal levels over the decades in many areas, playing an important role in consolidating democracy, improving policies, engaging in participatory mechanisms, delivering services, and helping to increase transparency and inclusive civic participation.
Funding of civil society organisations
There are no consolidated data available on CSO funding sources in Brazil. It is possible to get a snapshot of public resources transferred to CSOs thanks to the online CSO mapping platform and studies, but financial information on donations to CSOs, international funding and economic activities is incomplete and only available when organisations themselves include it on the platform (Ipea, 2018[354]). Data from the Federal Revenue Service, where some of this information is captured, are not accessible at disaggregated level because of tax secrecy rules (Ipea, 2018[354]). Nonetheless, studies show that the main sources of CSO funding in Brazil are federal, state and municipal governments; private companies and institutions; individuals; international entities; and economic activities (O Mundo que Queremos, 2019[370]; CETIC, 2017[371]; ABONG, 2010[372]; Ipea, 2018[354]; Mello, Pereira and Andrade, 2019[352]).
Public resources
A study by Mello, Pereira and Andrade (2019[352]) shows that 2.7% of CSOs registered in Brazil received federal funding between 2010 and 2018. A total of BRL 118 billion was allocated to these entities over the period, equivalent to 0.5% of Brazil’s annual budget. Organisations focusing on health received the largest volume of federal funding (27.6%), followed by education and research (22.6%), and development and defence of rights (16.7%) (Figure 5.13). Development and defence of rights organisations prevailed in the number of transfers and the number of beneficiary CSOs, but experienced a drop in the volume of transfers over the period. Although the title of this category suggests organisations working for the defence of rights of different groups, it goes much beyond this. When the share of 16.7% is broken down into its more than ten sub-categories, it becomes clear that the majority of the funds in this category go to health, social welfare and education associations as well as employer and professional associations. From the ca. BRL 20 billion committed to this category over the period 2010-18, a negligible 0.07% went to organisations working on defending the rights of groups and minorities.
Another Ipea study (2018[354]) found that, while annual amounts transferred from the federal government to non-profit entities directly dropped during the last decade, there has been an increase in CSO funding at the state and, especially municipal, levels over the same period. The study shows that growth in state transfers to CSOs from 2002 to 2016 was 140% and growth in municipal transfers reached 555%. The limited data available from the CSO mapping platform indicate that, in the period 2015-20, organisations working on health, social assistance, culture, the environment and education were the main beneficiaries of funds from partnerships with the state government, while those working on health, culture, social assistance and sports benefited the most at the municipal level.
International funding
CSOs are allowed by law to receive funding from international organisations and from foreign states without restrictions. International funding has been an important resource for Brazilian CSOs over the years. Between 1964 and 1985, Brazilian CSOs were heavily sponsored by development organisations and foundations from Europe and North America (ABONG, 2014[373]). Following the social and economic advances in Brazil during the 2000s, the country was considered an upper middle-income country less in need of foreign aid and, as a result, international funding dropped. The situation worsened with the 2008 global economic crisis, which brought recession to several European countries, directly impacting their support to CSOs in Brazil (Pannunzio et al., 2019[374]). Although less than it once was, international funding remains central, especially for advocacy and watchdog CSOs and those working on the defence of minority rights.
Current foreign funders of Brazilian CSOs include governments, multilateral bodies and international foundations, organisations, and even political parties. Germany, the United States, Italy and Norway were the main donor governments to the CSO sector in Brazil in 2019 (OECD, 2021[375]). Important multilateral funders included the European Union institutions and the Global Environment Facility (OECD, 2021[375]). The Ford Foundation, the Open Society Foundations, and the Bill & Melinda Gates Foundation are some of the largest foundations donating to Brazilian CSOs (Open Society Foundations, n.a.[376]; Craveiro, 2016[377]).
Individual and corporate donations
As indicated above, official data regarding individual donations to CSOs in Brazil are not available because of tax secrecy rules. Tax incentive laws, funds and programmes exist at federal, state and municipal levels, providing fiscal benefits for donations from individuals and corporate entities to CSOs. One of the most well-known is the Fund for the Rights of Children and Adolescents, which is managed at the municipal and state level through councils that deliberate and decide on the beneficiary projects (Presidency of the Republic, 2021[378]). These councils are typically composed of representatives from relevant government and non-governmental entities. Donations to these funds are tax deductible for individuals and legal entities. CSOs working in the relevant sector can apply for resources from the fund. Another example is the Culture Incentive Law (known as the “Rouanet Law”). To benefit from this fund, projects first need to be approved and authorised for funding by the Ministry of Culture. Once approved, organisations can then seek resources from companies and individuals, who are able to benefit from tax deductions for a part of their contribution. Similar tax incentive funds exist in a number of areas, including health, sport, the elderly and people with disabilities,60 each with their own funding procedures and institutional set-ups.
Individuals can also allocate a part of their income tax return to organisations registered under these funds, the details of which vary depending on the particular fund (Nader, 2021[379]; Uol, 2021[380]). Individual donations beyond the limit set under the tax incentive, or to organisations not registered under a fund, do not benefit from a tax benefit and are taxed. One of the greatest disincentives to a donation culture in Brazil is the Tax on Causa Mortis Transmission and Donation (ITCMD), a tax applied for donations and inheritance, irrespective of whether the donation is in the public interest (Pannunzio and Souza, 2018[381]; ABONG, 2014[373]). Since it is a state competence, the ITCMD rate and exemptions vary. In most states, the tax rate is 4% of the donation value and is payable by the receiving party (Pannunzio and Souza, 2018[381]). A survey (Pannunzio and Souza, 2018[381]) widely referenced in the literature about taxation of donations and heritage in 75 countries found that donations are only taxed in 30 countries. However, almost all of these countries – 26 out of the 30 – establish differentiated treatment when it comes to donations directed to CSOs, either in the form of a tax exemption or a reduced tax rate. Brazil is one of the four countries where donating to a CSO is not differentiated from other donations, and actually costs money.
Although the donation culture is not as strong in Brazil as in other countries (Charities Aid Foundation, 2021[382]), this type of funding is critical, as it offers more flexibility to CSOs in terms of managing and reporting than do resources from public contracts. Such donations can also help to cover expenses that may be difficult to finance from other sources but that are indispensable to the functioning of their organisations, such as rent, electricity or salaries of administrative staff.
The Tax Invoice Programme (Programa da Nota Fiscal) is an innovation that helped to popularise citizen contributions to CSOs (ABONG, 2014[373]). This programme, currently carried out by the state of São Paulo, among other states, foresees the allocation to CSOs of a part of the value-added tax collected on consumer purchases. Citizens can choose the organisations they wish to support among those registered and when they make purchases such as toys, shoes, clothes or food, a share of the tax goes to their individualised list of preferred entities (Government of São Paulo, 2018[383]). A study conducted in 2017 found that, between 2008 and 2016, the São Paulo Tax Invoice Programme distributed BRL 655 million to CSOs (G1, 2017[384]).
Companies can also obtain tax deductions for donations to CSOs registered under the funds and to other non-profit entities that act in the public interest. Corporate donations of up to 2% of company profits can be made, but are only possible for companies taxed on their “real profit”61 that are up to date with their taxes (Iser, 2018[385]; ABONG, n.a.[386]). These donations take the form of direct institutional funding or project sponsorship. According to the GIFE Census (GIFE, 2019[387]), one of the main surveys on private social investment in Brazil, BRL 3.2 billion were donated by their member companies, institutes and foundations for social purposes in 2018. More than half of the donors supported CSOs based on their own programmes and/or through calls for proposals, while 30% provided institutional funding.
Economic activities
The sale of products such as books or clothes, the organisation of events, rental of space and property, raffles, draws, lotteries, and the provision of lectures and workshops are often used by CSOs as a source of resources, since the revenue can be freely allocated to operational costs and is not linked to specific programmes or projects (ABONG, 2015[338]). This kind of activity is especially common among smaller organisations, which may not have access to the more formal grants that typically require a certain level of bureaucracy to administer and report on.
Strengthening relations between the state and CSOs
According to the background report submitted to the OECD for this review, a number of public authorities62 engage and work with CSOs, each with a different role. The main engagement is undertaken by the following bodies:
The Special Secretariat for Social Articulation, part of the Secretariat of Government of the Presidency, is the main entity responsible for relations with CSOs. Its mandate includes: 1) articulation of the federal government’s relations with different segments of civil society and their representatives; 2) co-ordination of dialogue with CSOs and monitoring of actions and results of the CSO partnership policy; and 3) promotion of social participation within the federal government (Secretariat of Government of the Presidency, 2021[388]).
The Secretariat for Transparency and Prevention of Corruption of the Office of the Comptroller General has been working closely with CSOs for almost a decade. The four Open Government national action plans, which it co-ordinates, were developed with extensive civil society participation in the selection of themes, definition of challenges, design, implementation and monitoring of actions (Government of Brazil, 2021[360]). The secretariat has a “Dialogues” programme to promote engagement with CSOs and encourage social participation, enabling an exchange of experiences and the development of joint projects (Office of the Comptroller General, n.a.[389]).
Sectoral ministries also engage with CSOs by funding projects as part of their institutional programmes (Government of Brazil, 2021[360]).
A provisional measure (Government of Brazil, 2019[390]) passed on 1 January 2019 attributed to the Secretariat of Government the role to “supervise, co-ordinate, monitor and follow up on the activities and actions of international bodies and non-governmental organisations in national territory”. The wording of the measure was perceived by CSOs as a threat to their autonomy and caused a fierce reaction. Organisations ran a campaign to revoke the measure, including by sending an open letter to the minister of the Secretariat of Government to express their views (Conectas Human Rights, 2019[391]; Pacto pela Democracia, n.a.[392]; Transparência Brasil, 2019[393]; Plataforma MROSC, 2019[394]). The Federal Prosecutor’s Office for Citizen Rights also intervened, sending a technical note to the National Congress suggesting that the measure was unconstitutional and “an offense to Article 5, Item XVIII of the Constitution, which provides other highly important constitutional principles, such as social participation” (Public Prosecutors' Office, 2019[395]). The law was finally published (Government of Brazil, 2019[396]) with adjusted wording and no reference to supervising CSO activities (Conectas Human Rights, 2019[397]).
Despite this conciliatory closing of the matter, the situation had a negative impact on relations between the government and CSOs, creating tension and a fear of attempts to control CSO activities (Terra de Direitos, 2020[398]). Concerns increased a few months later when a decree (Government of Brazil, 2019[399]) abolished several participatory councils (see Chapter 6) and revoked the National Policy for Social Participation, approved in 2014 (Government of Brazil, 2014[400]). These legal measures were followed by a series of practices that CSOs perceive as threatening rights achieved after decades of struggle, including their freedom to express, associate, assemble, participate, pursue their mandates without interference and obtain funding for their activities (Conectas Direitos Humanos, 2021[401]). An illustrative case was that of the city of “Alter do Chão”, where four fire brigades were arbitrarily arrested for allegedly setting fire in the forest and a CSO where one of them worked had its office occupied and material confiscated by the police (Santilli, 2019[402]; The Guardian, 2019[403]).
Out of the 23 CSOs responding to a survey for this review, 18 found that the enabling environment for CSOs has tightened in the last three years, 4 found it has remained the same, 1 did not have an opinion on the subject and none found it had improved. Asked about the main benefits expected from the implementation of open government principles in Brazil, 17 said they expected better co-operation with the government. The 26 non-governmental actors who provided written inputs to a public consultation for this review also reported deteriorating conditions for civil society. This assessment was confirmed in over 30 interviews with CSOs, who described challenging circumstances during the last decade and a decline since 2019.
One of the concerns raised by CSOs relates to negative public statements about their work from public officials (Santilli, 2020[404]; RFI, 2020[405]; Pacto pela Democracia, n.a.[406]). Some remarks refer to CSOs more generally, while others are particularly targeted at organisations working in the environmental sector (Article19, 2020[136]; Romano, 2019[407]; Pacto pela Democracia, 2020[408]). These are perceived as damaging to their work and reputation. CSOs have also expressed concerns about the introduction of bills that, if approved, may further hamper their operating environment (Box 5.2).
Recommendations
While the MROSC regulates partnerships between the government and CSOs, there is no policy or strategy to promote an enabling environment for these organisations in Brazil (Government of Brazil, 2021[360]). This Open Government Review and the OGP process present an opportunity to recognise the importance of empowered and protected CSOs in Brazil with a view to obtaining better outcomes from open government initiatives and to create such an environment. To benefit from this opportunity, the government could:
Assess the challenges faced by CSOs, especially those working with marginalised groups and as watchdogs, and define concrete steps to improve and protect their operating environment. This could be in the form of a road map on the protection of civic space and civil society and could be included in the Federal Open Government Strategy discussed in Chapter 3. It is crucial that such a road map is developed in extensive consultation with an inclusive range of CSOs.
Utilise the OGP and other multi-stakeholder processes to make explicit commitments related to the protection of civic space and the enabling environment for CSOs as part of Brazil’s forthcoming OGP National Action Plans.
Consider ways to engage in positive public communications about the importance and contribution of CSOs and other non-governmental actors to policy making and service delivery. Public communications could also be used to give visibility to important initiatives and contributions from CSOs and social movements to society.
Consistently involve CSOs in the review of legislation and policies that impact their work, ensuring sufficient time, opportunities and feedback loops for them to engage effectively.
Ensure the protection of CSO rights to operate without interference and ensure that any cases of arbitrary arrest, unwarranted interference or abuse of power are duly prosecuted.
Include civil society representatives in all stages of the development of the fourth edition of the National Programme for Human Rights. Ensure the programme is drafted in extensive consultation with civil society, ensuring continuous feedback loops.
Expanding access to funding and reducing the administrative burden
Although CSOs are legally entitled to a range of potential public and private funding sources in Brazil, obtaining such funds remains a challenge in practice. A range of obstacles exist, some impacting all organisations, others particularly affecting smaller and more informal ones and those working for the rights of vulnerable people (see Table 5.3 for an overview).
Small CSOs, which are the majority, have limited structures and personnel to ensure compliance with labour, social security and tax legislation at the federal, state and municipal levels, in addition to funding requirements. They find that the complexity, conditions, restrictions and demands they face are disproportionate to their size and to the amount of funds they manage (Fundação Grupo Esquel Brasil, 2019[409]). They also note that the resource itself does not fully finance the necessary training and skills (ABONG, 2014[373]). This is especially problematic for small CSOs that do not have the staff or knowledge necessary to comply with the administrative requirements. Some states also impose conditions that go beyond those foreseen in law. For example, one study of 31 subnational decrees implementing the MROSC Law found provisions for additional documentary requirements for CSOs receiving public funds that the national law did not foresee (Leichsenring et al., 2020[345]). Another challenge is that unregistered organisations are unable to partner with the government, since the MROSC requires legal and fiscal regularity (Government of Brazil, 2014[339]). Similarly, organisations without an office address are unable to formally register themselves, effectively excluding many smaller CSOs.
The decrease in available funding at the national and international levels has undoubtedly affected CSOs’ ability to operate. In addition to a decrease in available funding from the federal government, CSOs also report a drop in the number of public calls for proposals in the last two years, the cancelation of funding programmes that were formerly regular and cases of contracts approved but resources not sent63 (Bergamo, 2021[410]; Igarapé Institute, 2021[411]). Following the 2008 global economic crisis, a decrease in international funding was especially critical for advocacy and watchdog CSOs and those working on the defence of rights. Identifying and reaching foreign funders can be difficult for smaller organisations and for those located in remote areas due to the need to apply for funds virtually and in English. Within this context, CSOs working in these areas could benefit from more public support in line with Provision 8 of the OECD Recommendation of the Council on Open Government, which notes that “specific efforts should be dedicated to reaching out to the most relevant, vulnerable, underrepresented, or marginalised groups in society” (OECD, 2017[3]). An initiative from the government of Argentina can provide valuable lessons in this sense. It passed two resolutions in 2020 aimed at facilitating the constitution of CSOs whose main purpose is the promotion of economic, social and cultural rights of vulnerable groups or ethnic communities in conditions of poverty and vulnerability, the promotion of gender issues or organisations supporting community services (General Inspection of Justice, 2020[412]; 2020[413]). The resolutions present norms that facilitate and reduce the cost of compliance with formalities involved in the establishment of organisations. They foresee a simplified instrument, reducing costs and exemption from certain fees and procedures, subject to the fulfilment of the objectives.
The fiscal incentive laws for donating to CSOs have been a welcome step, although challenges exist for parties to benefit from them. The system is complex and the absence of a centralised information source to guide CSOs through the different funds, their unique procedures and the various entities involved makes it difficult to obtain the necessary information. Existing tax incentive funds and programmes discussed above are also specific to particular areas and exclude CSOs working on issues such as the environment, public security, LGBTI rights and those acting as watchdogs (ABONG, 2015[338]).
The funders themselves also experience challenges. Well-intentioned individuals who wish to support CSOs are often discouraged by the cost of donating and the complexity of the regulations (GIFE, n.a.[414]). For companies, each tax incentive programme has its own rules and to benefit from them, companies must spend money on human resources, structure, technology and communications (Iser, 2018[385]). Although corporate donations can be made under the tax incentive laws if related to an area covered by a fund, the GIFE Census (GIFE, 2019[387]) found that only 14% of the social investments made by its members were made through these laws. Furthermore, as only companies taxed on their real profits are entitled to these incentives, only around 3% of companies in Brazil benefit from them (Iser, 2018[385]; NECCT, 2012[415]).
Potential solutions may be found in other LAC countries, such as neighbouring Colombia, where CSOs face similar challenges but can apply to benefit from a special tax regime for organisations that are non-profit and that use their income for the improvement of their processes or for the achievement of a social purpose (Government of Colombia, 2021[416]). These organisations are typically funded by donations from individuals, corporations or public entities. When entitled to the special tax regime, Colombian CSOs have a 20% income tax rate on net profit or surplus and can be exempt from taxes when their income is destined to programmes with a social purpose or that develop the entity’s purpose.
Recommendations
Build on existing partnerships with CSOs by expanding public funding opportunities and tax incentives for them, including those working on the rights of marginalised groups, vulnerable people and minorities, and those doing advocacy work, while also protecting their autonomy.
Seek to reinforce CSO capacity related to applying for and managing public funding, in addition to administrative and tax requirements, through training and communications, particularly for smaller CSOs.
Train public officials who manage CSO funds to better support applicants with information and to process request for funds more efficiently.
Facilitate more private donations for CSOs by creating measures that simplify, expand and encourage them, including by:
Providing tax exemptions or a tax reduction for donations directed to CSOs or in the public interest.
Expanding the Tax Invoice Programme to more states, accompanied by communication reassuring contributors of their privacy in purchases.
Adapting or expanding existing tax incentive programmes and funds to other areas (beyond rights of children, health, sport, the elderly and people with disabilities) so that groups operating in other fields become eligible.
Simplifying the process and regulations for donations and funds from the perspective of recipient CSOs, donating individuals and companies.
Consider removing the requirement of an office address for CSOs to register, allowing organisations that do not have a physical location to formalise themselves and apply for public funding.
Consider ways to recognise the legitimacy of informal CSOs and social movements, and encourage innovative forms of funding that they can benefit from. The government could collaborate with municipalities and the private sector to seek ways to support them on activities that are in the public interest by providing resources, whether financial or material (e.g. meeting spaces).
Consider adopting a simplified legal regime for CSOs “to support their compliance with labour, social security and tax legislation. A proposal for such a regime has been prepared by Plataforma MROSC, a network with more than 1 300 Brazilian CSOs (Plataforma MROSC, 2021[417]) and presented to the National Congress (Ferrer, Rocha and Mestriner, 2021[418]). It includes provisions on differentiated and preferential treatment for CSOs engaged in actions in the public interest, economic and fiscal incentives, and an exemption from social security contributions, and should be assessed and carried forward in an inclusive consultation with CSOs.
Countering mistrust
The main reasons cited by Brazilians for not donating to CSOs are a lack of resources and mistrust in organisations (IDIS and Charities Aid Foundation, 2016[419]). The perception that resources provided to CSOs could be diverted gained force during a parliamentary inquiry committee that lasted from 2007 to 2010 (National Congress, 2010[420]). The committee was in charge of investigating money transfers from the federal government to non-governmental organisations. Several cases of corruption and misuse of resources were identified, including related to illicit enrichment, embezzlement, misappropriation and diversion of public money. Ghost organisations, which had been created with the sole purpose of diverting public funds, were brought to the public’s knowledge. These scandals made the headlines over the years and may have contributed to a criminalisation of the sector in people’s minds (ABONG, 2014[373]).
Another element that may influence citizens’ perceptions of CSOs is the existence of organisations that are ambivalent about democratic values. They represent a branch of conservative civil society that explicitly favours authoritarian responses to corruption and the so-called defence of “moral” values (Fowler et al., 2018[421]). They are not new in Brazil, but have become more vocal and influential lately thanks to an effective use of social media and to the formation of coalitions. An example of their growing influence was a 2017 campaign against an art exhibition displaying works of art by Brazilian painters in the city of Porto Alegre, called the “Queermuseu”. Campaigners accused the artists and organisers of promoting blasphemy, paedophilia and bestiality, and of attacking Christian values. Following protests at the cultural centre, sponsorship boycotts and an online campaign, the exhibition was cancelled.
The Edelman Trust barometer (Edelman, 2020[422]) shows that trust in non-governmental organisations increased slightly in Brazil in 2019, but is still considered as “neutral”, behind countries like Colombia and Mexico, where trust is present. As part of the same research, 51% of Brazilians responded that non-governmental organisations are honest and fair, but as many as 32% said they are corrupt and partial. The fact that most organisations do not have formal employees and operate mainly with volunteers may contribute to the perception that they are not professionalised and capable.
Recommendations
It is important for the CSO sector to continue to strengthen its professionalism, transparency and accountability with a view to building trust with citizens and government entities alike.
Parallel to this, citizens’ perception of CSOs could be improved via positive public communications from the government that recognises their positive contribution to society, accompanied by the reopening and expansion of opportunities for CSO participation in policy making and service delivery as a means of legitimising them and strengthening trust in them (see also Chapter 6).
Expanding access to data on the CSO sector
The Ipea’s online CSO mapping platform was a notable effort to increase the transparency of information related to CSOs in Brazil (Ipea, 2020[347]). In addition to the download of databases, the platform also offers analysis of the data collected in the form of ready-made visualisations of selected indicators. There are currently eight indicators showing the distribution of CSOs per level of employment, area of work, type of service and sub-indicators of these (Ipea, n.a.[423]). These visualisations are extremely useful as they provide an accessible overview of CSOs in Brazil, but could also be expanded further.
The Transparency Portal (Office of the Comptroller General, 2021[424]) is another important tool for CSOs; it provides information on how public money is used, including transfers made to non-profit entities as registered in public budgets. However, the online CSO mapping platform and the Transparency Portal could be better linked. The term used for CSOs in the online CSO mapping platform (civil society organisation, or “OSC” in Portuguese) does not reflect the budget category used in the Transparency Portal for such organisations (nonprofit- entities or “ESFLs” in Portuguese), which goes beyond CSOs. This mismatch makes it difficult for citizens to understand exactly how much public funding the different types of CSOs are receiving, which areas and sub-areas get more or less funding and changes over the years. It is also difficult to know how much funding CSOs receive from federal, state and municipal levels of government and how these rates have changed over the years.
As already noted by the Ipea (2018[354]), fragmentation of information between different public entities is a major limitation for understanding how CSOs operate and fund their activities. Information that is currently available often lacks detail and does not integrate data from the different public entities concerned. To better understand the relevance of CSOs, Brazil could reorganise relevant data in a way that integrates the local, state and federal levels, in addition to presenting data on private donations, currently managed by the federal revenue service and protected for tax secrecy reasons.
Recommendations
Expand the ready-made visualisations of selected indicators in the CSO mapping platform to include financial breakdowns, such as public funding per area and sub-area of CSO; sources of funding of CSOs; and the number of partnerships and resource transfers to CSOs from federal, state and municipal public entities, among others. Increase the frequency of new analyses of data.
Improve linkages between the online CSO mapping platform and the Transparency Portal, ensuring they use the same terminology and simplifying access to information and data on public funding to CSOs.
Continue to expand the platform by integrating data from different public entities at local, state and federal levels.
Consider ways to increase access to information on private donations to CSOs. According to the Ipea, selected data from individuals and companies that make donations could be aggregated – to preserve tax secrecy – and made publicly available (Ipea, 2018[354]).
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Notes
← 1. For more information see (OECD, n.d.[430]).
← 2. The World Justice Project ranks Brazil 67th out of a total of 128 countries in its Rule of Law Index and 16th out of a total of 30 regional countries. The scores and rankings in the index are derived from more than 130 000 household surveys and 4 000 legal practitioner and expert surveys worldwide, making it “the most comprehensive dataset of its kind” (World Justice Project, 2020[10]).
← 3. CIVICUS ranks countries according to whether their civic space is open, narrowed, obstructed, repressed or closed. A number of countries in the LAC region, including the Plurinational State of Bolivia, Chile, Ecuador, Paraguay and Peru, were all ranked as “obstructed” in 2020. Argentina and Guyana were ranked as “narrowed”, Suriname and Uruguay as “open”, and Colombia and the Bolivarian Republic of Venezuela as “repressed” (CIVICUS, 2020[14]).
← 4. The V-Dem Institute’s Liberal Democracy Index is based on 71 indicators, capturing both liberal and electoral aspects of democracy. Many of these are directly relevant to the OECD’s pillars of civic space, including: freedom of association (6 indicators under the Electoral Democracy Index); freedom of expression and alternative sources of information (9 indicators under the Electoral Democracy Index); and equality before the law and individual liberty index (20 indicators under the Liberal Component Index) (V-Dem Institute, 2021[12]).
← 5. The top five decliners in the V-Dem Liberal Democracy Index are Poland, Hungary, Turkey, Brazil and Serbia (V-Dem Institute, 2021[12]).
← 6. Interview with the Ministry of Women, Family and Human Rights on 8 March 2021.
← 7. Brazil has ratified 16 out of 18 international human rights treaties, including the International Covenant on Civil and Political Rights, as well as the Optional Protocol and Second Optional Protocol to the International Covenant, the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women and the Optional Protocol to the Convention; and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Optional Protocol to the Convention (OHCHR, n.a.[426]).
← 8. A provisional measure in Brazilian legislation is an instrument with the effect of a law, adopted by the President in cases of relevance and urgency. It has immediate effect but depends on National Congress and Senate approval to become a definitive law (Chamber of Deputies, n.a.[427]).
← 9. This section draws from and summarises information provided in a background report prepared by the Library of Congress for the Brazil civic space assessment of the OGR. See Library of Congress (2020[15]).
← 10. The type of authorisation required is not specified in the Constitution, but a 2014 Supreme Court ruling indicated that, to ensure representation, the authorisation of members who wish to be represented by an association is indispensable, either individually or through an assembly, recorded in the minutes (Supreme Federal Court, 2014[428]).
← 11. According to Article 139 of the Criminal Code, defaming someone by attributing a fact that is offensive to their reputation is punishable by three months’ to one year’s imprisonment and a fine.
← 12. See IACHR, judgment in the case of Ricardo Canese v. Paraguay, 31 August 2004.
← 13. See UN Human Rights Committee: General comment No. 34 (2011); Article 19: Freedoms of opinion and expression, CCPR/C/GC/34, 12 September 2011.
← 14. See UN Human Rights Committee: General comment No. 34 (2011); Article 19: Freedoms of opinion and expression, CCPR/C/GC/34, 12 September 2011. See also UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the expert workshops on the prohibition of incitement to national, racial or religious hatred, A/HRC/22/17/Add.4, 11 January 2013, Appendix: Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. In the Rabat Plan of Action, blasphemy laws are described as counter-productive, as they may result in a de facto censure of inter- or intra-faith dialogue; for this reason, the recommendation was made to repeal such laws. See also UN Special Rapporteur on freedom of religion or belief, Report, A/HRC/31/18, 23 December 2015.
← 15. The Data Protection Law (Law 13709/2018) does not apply to the processing of personal data originating outside the national territory and which are not the object of communication, shared use of data with Brazilian processing agents or the object of international data transfer with a country other than the country of origin, provided that the country of origin provides a degree of protection of personal data adequate to that provided for in this law (Art. 4).
← 16. See the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR Special Rapporteur on Freedom of Expression and Access to Information, Joint Declaration on Freedom of Expression and the Internet, 1 June 2011.
← 17. For more information, see the OECD Good Practice Principles for Data Ethics in the Public Sector (OECD, 2021[431]).
← 18. Unless convictions are invoked in order to be exempted from a legal obligation imposed to all or to refuse compliance with an alternative obligation established by law.
← 19. Article 3 onwards of Law 7716 of 1989 defines the crimes and corresponding punishments resulting from race- or colour-based discrimination. Article 20 foresees a penalty for practicing, inducing or inciting discrimination or prejudice against race, colour, ethnicity, religion or national origin. Such acts are punishable by one to three years’ imprisonment and a fine.
← 20. The 32% refers to seats in the lower/single house of parliament in OECD countries.
← 21. The Maria da Penha Law defines patrimonial violence as any conduct which constitutes retention, removal, partial or total destruction of objects, work instruments, personal documents, property, values, and rights or economic resources, including those destined to satisfy their needs (Art. IV).
← 22. The Maria da Penha Law defines moral violence as any conduct constituting slander, defamation or injury (Art. V).
← 23. The penalty for femicide is increased by one-third to one-half if the woman is pregnant or if the crime is committed in the three months following childbirth; against a person under 14 years of age or over 60 years of age; with a disability; or in the presence of a descendant or ascendant of the victim (Government of Brazil, 2015[425]).
← 24. Interview with CSOs on 31 May 2021.
← 25. Contributions to OECD public consultation on civic space received on 28 February 2021 and 30 March 2021.
← 26. Contribution to OECD public consultation on civic space received on 4 February 2021.
← 27. Options for answers ranged from 1 (a threat-free environment) to 10 (source protection is under permanent threat). The final result for perceived threats from political power was 8, from the military 8, from judges and prosecutors 8, and from organised crime 9. These unpublished data informed the content of the Press Freedom Index (Reporters Without Borders, n.a.[128]).
← 28. Information received from the Ministry of Women, Family and Human rights on 8 September 2021.
← 29. Public FTA channels with significant national coverage in Brazil are TV Brasil, owned by EBC which was unified with a government channel in 2019; TV Justiça from the Supreme Federal Court; TV Câmara from the Chamber of Deputies; TV Senado from the Senate; TV Cultura from the State of São Paulo; TV Escola from the Ministry of Education; and Canal Saúde from the Ministry of Health (OECD, 2020[28]).
← 30. Options for answers ranged from 1 (no interference whatsoever) to 10 (total interference). The final score for Brazil was 10. These data inform the content of the world-renowned Press Freedom Index (Reporters Without Borders, n.a.[128]). Detailed data were provided to the OECD by Reporters Without Borders on 16 February 2021.
← 31. The number is greater than the total number of inhabitants of Brazil as the leak may include information from deceased people and inactive social security numbers (Bolzani, 2021[160]).
← 32. Fact-finding mission interviews with health, communication and comptroller authorities on 1-3 March 2021.
← 33. Fact-finding mission interview with the Social Communication Office of the Office of the Comptroller General on 9 March 2021.
← 34. Misinformation is defined as false information that is shared without the intention of causing harm, whereas disinformation is false information knowingly shared to cause harm (Matasick, Alfonsi and Bellantoni, 2020[187]).
← 35. Interview with CSO on 23 July 2021.
← 36. Contributions to the OECD public consultation on civic space received on 28 February 2021.
← 37. Respondents were asked “Which of the following, if any, are you most concerned about on line? Please select one. False or misleading information from…”. The base sample in Brazil was 2 058 respondents.
← 38. Telecentres are public spaces with computers, other IT equipment and broadband Internet connection, offering ICT activities to promote digital and social inclusion (OECD, 2020[182]).
← 39. The percentage of Afro-Brazilians residing in homes without garbage collection is 12.5%, compared to 6.0% of the white population; the percentages without water supply are 17.9% and 11.5% respectively; and without sanitary sewers or sewage systems 42.8% and 26.5% respectively (IBGE, 2019[227]).
← 40. The categorisation of intentional violent deaths includes murder, bodily injury followed by death, robbery followed by death and deaths resulting from a police intervention.
← 41. These plans are: National Public Security Plan (1991); National Public Security Plan, National Public Security Fund (2000); Public Security National Force (2004); National Programme for Security with Citizenship (2007); Safer Brazil, Crack it is Possible to Win and National Public Security Strategy at the Borders, among others (2012); National Plan for Homicide Reduction (2015); National Public Security Plan (2016-17) (Turollo Jr., 2018[232]).
← 42. Interviews with CSOs on 4 March 2021, 10 March 2021 and 12 March 2021. Email received from CSO on 28 May 2021.
← 43. Email received on 28 May 2021 from a CSO specialised in access to information.
← 44. Input received from government source by email on 7 April 2021.
← 45. Webinar on 12 August 2021 about the institutional architecture of the Brazilian public security system organised by the Fernando Henrique Cardoso Foundation with academics, CSOs and a police officer (Fernando Henrique Cardoso Foundation, 2021[429]).
← 46. In the context of this chapter, and in line with Art. 144 of the Brazilian Constitution, public security bodies refer to the federal police; federal road police; federal railway police; civil police forces; military police forces and firemen bodies; and federal, state and district criminal police forces.
← 47. Information received from the Ministry of Women, Family and Human Rights on 8 September 2021.
← 48. Information received from the Ministry of Women, Family and Human Rights on 8 September 2021.
← 49. Information received from the Ministry of Women, Family and Human Rights on 8 September 2021.
← 50. More specifically, written inputs received on 1 February 2021, 4 February 2021, 23 February 2021, 26 February 2021, 28 February 2021 and 1 March 2021.
← 51. Information received from the Ministry of Women, Family and Human Rights on 8 September 2021.
← 52. Quilombolas are residents of quilombos, which were settlements established by Afro-Brazilian slaves who escaped.
← 53. Interview with CSOs on 12 March 2021 and 31 May 2021. Public consultation inputs received on 4 February 2021.
← 54. The term used by the Ministry of Women, Family and Human Rights is LGBT.
← 55. The term LGBTI+, which includes lesbian, gay, bisexual, transgender, intersex and other variations, is used by the organisations Acontece Arte e Política LGBTI+ and Grupo Gay da Bahia.
← 56. The following 12 countries had ratified the Escazú Agreement at the time of writing: Antigua and Barbuda, Argentina, Bolivia, Ecuador, Guyana, Mexico, Nicaragua, Panama, Saint Vincent and the Grenadines, Saint Kitts and Nevis, Saint Lucia, and Uruguay.
← 57. This public interest designation can be given to non-profit, non-public entities that have been in regular operation for at least three years and have a social purpose (Government of Brazil, 1999[336]).
← 58. CSOs are considered to be entities that simultaneously meet five criteria: 1) private and not bound to the state; 2) not-for-profit; 3) legally constituted; 4) self-administered and managing their own autonomous activities; 5) constituted voluntarily by individuals, and whose activities are performed voluntarily. This definition, based on the 2002 Handbook on Non-profit Institutions in the System of National Accounts produced by the United Nations Statistics Division and John Hopkins University is used by the statistical and research bodies of the federal government, the IBGE and the Ipea.
← 59. Roundtable discussion on 15 April 2021.
← 60. Tax incentive laws and funds include the Culture Incentive Law and Audiovisual Law, Sports Incentive Law, Children and Adolescents Fund, Elderly National Fund, National Health Care Attention Support Programme (Pronas), National Oncological Care Support Programme (Pronon), and National Culture Support Programme (Pronac).
← 61. “Real profit” refers to taxes levied on a company’s actual profit and calculated based on monthly or quarterly revenue. As established by law, some business activities must opt for this regime. It also includes companies whose annual gross revenue is more than BRL 78 million.
← 62. These include the following: the Secretariat of Government of the Presidency, the Public Prosecutor’s Office, the Union Public Defender, the Office of the Comptroller General and the Supreme Federal Court (Government of Brazil, 2021[360]).
← 63. Roundtable discussion on 15 April 2021.