The Brazilian Civil Rights Framework for the Internet
The Brazilian Civil Rights Framework for the Internet (Marco Civil da Internet) was approved into Law No 12.965 on April 23rd 2014. The bill was sanctioned by the President, Dilma Rousseff, at the beginning of the NETmundial – Global Multistakeholder Meeting on the Future of Internet Governance in São Paulo. You can access a translated version of the law below.
The bill presented by Government and the final text are fairly different. In 2010, CTS/FGV commented on the process that led to the development of the bill and in 2011, it published an article about the need for its approval (in Portuguese). In 2014, the approval of the bill by the Brazilian Congress was analyzed in article published in the May edition of LACTLD Report (available in English and Spanish). Some changes made by the Parliament improved the quality of the text, while others are subject of deep concerns for public interest groups. On the negative side is the mandatory data retention for ISPs, which created a mechanism that can hardly be considered proportional and balanced, especially after the European Court of Justice, in a recent decision, declared the EU Data Retention Directive invalid.
Despite the existence of this specific point, Marco Civil is very important for the Internet in Brazil for several reasons. First of all, although principles such as freedom of expression and privacy are already enshrined in the Constitution, Marco Civil shows how these principles apply to the online environment. The law clarifies, for example, that the protection of logs is important from a privacy standpoint, something that is not self-evident, especially to individuals with no technical background. Secondly, Brazil has taken a major step forward in preserving net neutrality, following the example set by countries such as Chile and the Netherlands. It should be further regulated by a presidential decree, with inputs from the CGI.br (Brazilian Internet Steering Committee) and Anatel (the National Telecommunications Agency). Lastly, the law minimizes a situation of legal uncertainty, which stifles innovation and the flourishing of new business models online, particularly regarding conflicting court decisions involving the legal responsibility of intermediaries. While some decisions consider platforms responsible for content uploaded by third parties, others introduce limits for their responsibility. In the face on vacillating decisions, companies remove content that is potentially problematic in order to avoid legal action. Indiscriminate content removal may be detrimental to fundamental rights, such as access to information and freedom of expression.
Marco Civil will enter into force 60 days after its approval. At least two points will require further regulation for implementation: the data retention and Net Neutrality provisions. These points will be regulated by a Decree to be issued by President Dilma Rousseff.
With the approval of the Marco Civil, the Brazilian government may send to Congress a draft bill on Data Protection and the Copyright Law Reform proposal. Both draft bills were subject to public online consultations and are currently under review by government officials.