Brazil’s Internet Law, the Marco Civil, One Year Later

By Ronaldo Lemos

A professor at the State University of Rio de Janeiro and co-founder and executive director of the Institute for Technology and Society. He helped draft the Marco Civil.

It has been just over a year since Brazil passed the Marco Civil, a comprehensive law protecting the rights of Internet users. This was not a trivial piece of legislation. The whole process took more than seven years from its original conception, to numerous public consultations, and the approval by the Brazilian Congress in April 2014.

It’s no wonder it took that long. The law deals with quite a few hot topics, such as free speech, privacy, net neutrality, intermediary liability and issues other countries are still struggling to settle. Sir Tim Berners-Lee, the inventor of the World Wide Web, called it “a very good example of how governments can play a positive role in advancing web rights and keeping the web open.”

The Marco Civil has been instrumental in curbing the power of the Brazilian government from having undue influence over the net and its content. The law prevents the government from taking down or regulating content, or exercising any pressure on online platforms (e.g. the Twitters and YouTubes of the world) or Internet service providers. Only the courts, by means of due process, and limited by clear legal thresholds, can actually take action regarding online content when it infringes on other rights.

This seems like a sensible approach but it was not always obvious that Brazil would go for it. For years, Congress tried to pass very different legislation that would have given both the executive and the courts extensive powers to control the net. For example, one bill proposed to require Brazilians use an online “national ID” to browse the net. It also sought to create a number of felonies for activities such as “jailbreaking” smartphones or moving lawfully acquired music files from your iPod to your computer, with penalties of up to four years in jail. Believe me; you don’t want to spend four years in a Brazilian jail.

Contrary to techno libertarian notions of the 90s, the absence of a guiding law for the Internet wreaked havoc on its development in Brazil. Courts issued conflicting decisions, regulators worked at cross purposes, and legislators knew that some guidance was required but were often clueless about what to do. Important issues such as free speech online, intermediary liability and many others were decided for years in a random way. For instance, one judge would hold intermediaries liable to infringing content; the judge sitting next to her would rule exactly the opposite. In one notable case, a court in the state of Sao Paulo issued an injunction ordering the take down of all of YouTube in Brazil because a Brazilian model was captured on video getting intimate with her then boyfriend on a public beach in Spain. Where the judge found the legal grounds for blocking an entire website was anyone’s guess.

The legal uncertainty caused by these decisions gave headaches to entrepreneurs, librarians, politicians, regulatory agencies, users and just about everyone else in Brazil.

One year since the passage of the Marco Civil, the situation has improved considerably. While the lower courts still insist in injunctions ordering the takedown of online services, appellate courts have been consistent in reversing these decisions by citing the Marco Civil. In the past twelve months, lower courts—still attached to their older habits—have issued injunctions to take down popular WhatsApp, the now defunct service called Secret, and Uber. In all three cases, the outcome was the same: appellate courts reversed the injunction immediately. Had the Marco Civil not been in place, the outcome would have been different and most likely unpredictable.

The Marco Civil has also improved the way online platforms provide user data to the police for criminal investigations. Before the Marco Civil, some courts ruled that warrants were required and others didn’t. This year, the court of appeals in Sao Paulo decided that Twitter was not required to hand over data to the Federal Police in the absence of a warrant. The court held that handling the data without a warrant would violate the user’s privacy and violate the Marco Civil.

Lastly, the Marco Civil has put the Brazilian government back on track regarding the promotion of a free and open Internet on the international stage. Contrary to other countries, like Russia or Turkey that have expanded the power of the executive to interfere with the Internet, online content and speech, the Marco Civil has pushed Brazil in the opposite direction.

In short, the enactment of Marco Civil has had a big influence over the Brazilian legal system and educated the Brazilian public. Not many other countries in the world have been discussing issues like intermediary liability on the pages of Sunday newspapers since 2007. As a result, many Brazilians are now aware of technology policy issues and their broad implications. Brazil has proven that governments of the industrial world should not leave cyberspace alone. Good laws are better than no laws.

Article originally published on June 1, 2015 in  Net Politics. A blog by the Council of Foreign Relations (CFR)  [where] “experts investigate the impact of information and communication technologies on security, privacy, and international affairs.”

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