The Brazilian Senate approved Bill 2338/23, an initiative that seeks to establish a regulatory framework for artificial intelligence (AI) under principles of “responsible governance”. The move, potentially a model for Latin America, has raised both expectations and concerns about its scope and implications.
The Regulatory Promise on an Unequal Battlefield
By: Gabriel E. Levy B.
The regulation of AI is advancing between achievements and challenges at a global level. Europe is leading with its AI Regulation, which classifies risks and requires transparency, although it faces pressure from big tech companies seeking to soften its rules.
In Asia, China adopts strict state controls, but these prioritize government oversight over the protection of individual rights.
In contrast, the United States lacks a federal framework, leaving private companies to set the rules in a fragmented regulatory environment.
Cases such as Cambridge Analytica have exposed the risks of self-regulation. These global experiences underscore the urgent need for strong regulatory frameworks to ensure that AI serves the public interest, rather than reinforcing corporate or state interests.
Canada, a pioneer in digital rights, was one of the first countries to develop an Algorithmic Impact Statement to assess the risks of automated systems in the public sector.
The UK, with its National AI Strategy, seeks to foster innovation while addressing ethical concerns, although it lacks a binding regulatory framework like the European one.
Australia, meanwhile, has implemented a National AI Plan focused on principles of transparency and fairness, but faces criticism for its limited oversight of commercial applications.
In South Korea, regulation is moving forward with a proactive approach: its Personal Data Law, revised in 2020, is considered one of the strictest in Asia, while the government promotes ethical standards for the development and use of AI, balancing technological innovation with citizen protection.
Background in Latin America and Brazil
Latin America has traveled an uneven path in technological regulation. From the Personal Data Protection Law in Mexico (2010) to the General Data Protection Law (LGPD) in Brazil (2018), the region has sought to balance innovation with citizen rights. However, corporate influence and structural constraints have restricted the scope of these regulations.
In Brazil, the Civil Rights Framework for the Internet (2014) marked a turning point, guaranteeing net neutrality and privacy as fundamental rights.
Subsequently, the LGPD placed the country as a regional leader in data protection. However, the rise of AI has created new challenges, especially in an environment where digital platforms are influencing public debate.
In response, the government created commissions such as CJSUBIA to address these challenges, although corporate interests have complicated consensus.
Bill 2338/23
PL 2338/23 aims to be a comprehensive framework for regulating AI in Brazil, addressing sectors such as health, transportation, and online content moderation.
However, from its first versions, the project faced tensions between key actors: the government, academia, civil organizations and the technology sector.
During the public hearings, the influence of big tech was evident. Rafael Zanatta, of Data Privacy Brazil, pointed out that “labor guidelines that were intended to protect workers from automated systems were eliminated.” According to Derechos Digitales, 31% of participants represented the private sector, while civil society barely reached 19%. This imbalance reflected a bias toward corporate interests.
The exclusion of high-risk systems: progress or setback?
One of the most controversial points of PL 2338/23 is the exclusion of automated content moderation and recommendation systems from the high-risk list.
Originally, the project recognized these systems as dangerous because of their ability to manipulate behaviors and limit diversity in public debate. However, Article 77 of the bill establishes that the regulation of these issues will require specific legislation, leaving their impact on democracy without immediate supervision.
Experts such as Shoshana Zuboff, in The Age of Surveillance Capitalism, warn that these systems, designed to maximize interaction, can prioritize profit over collective well-being.
This regulatory vacuum raises crucial questions about transparency and accountability in a context where platforms have an inordinate impact on public opinion.
Global Examples: Lessons for Brazil
The Brazilian case finds parallels in other countries.
In Europe, the AI Regulation seeks to regulate high-risk systems, including content moderation, but faces resistance from tech giants seeking to reduce the impact of regulations.
In the United States, the absence of a regulatory framework has allowed companies such as Meta and Google to operate without clear restrictions, generating scandals such as Cambridge Analytica, where data manipulation influenced electoral processes.
These cases underscore the risks of delaying effective regulations.
For Brazil, the exclusion of key high-risk systems may turn the country into a testing ground for technological experiments that prioritize economic benefits over citizens’ rights.
The impact on citizens: between surveillance and disinformation
The exclusion of automated moderation systems directly affects Brazilian citizens, leaving the circulation of information in digital environments unchecked.
This regulatory vacuum facilitates the spread of disinformation and polarization, phenomena already visible in events such as the 2018 and 2022 elections.
Organizations such as Access Now highlight the need to supervise these systems under principles of transparency and accountability. Without effective controls, platforms can consolidate dynamics that reinforce social inequalities and erode public trust.
In conclusion, the approval of PL 2338/23 in the Brazilian Senate represents a milestone in the regulation of AI, but it also highlights significant challenges. The influence of the private sector and the exclusion of key high-risk systems raise questions about the balance between innovation and citizens’ rights. As the bill moves towards the Chamber of Deputies, Brazil has the opportunity to lead in Latin America, learning from global examples and building a regulatory framework that prioritizes social justice and democracy. The future of AI in the country will depend on its ability to withstand external pressures and ensure that the technology serves the common good.
