Brazilian Civil Rights Framework for the Internet

Source: Codigo Fonte@Uol

Pedro Vilela

The Civil Rights Framework for the Internet is the first brazilian legislation concerning Law and Internet. Essentially, it’s a legislative instrument which establishes rights and duties for providers and users of the Internet in Brazil. Nicknamed by several experts as the “Constitution of the Internet in Brazil”, the Civil Rights Framework is set to do precisely that: to frame rights and civil liberties which translate the foundational principles of the Federal Constitution into the Internet’s territory.

Historic

The origins of the Civil Rights Framework for the Internet go back to another legislation aimed toward the Internet: the Azeredo Law. Proposed by deputy Eduardo Azeredo (PSDB-MG), the law project, characteristically criminal, intended to create sanctions for given actions practiced through virtual means. However, it was considered excessively draconian and punitive, since it labeled everyday Internet actions, such as transferring songs from an iPod into a computer and unblocking phones in order to use them in different operators, as criminal offenses.

As an answer to this, a group of academics and activists got together in order to propose another legislation for the Internet in Brazil, this time not with a criminal disposition, but with a civil one. After a petition with more than 150 thousand signatures, the elaboration of the Civil Rights Framework law draft began.

Legislative process

The Civil Rights Framework was an exceptional legislation from the start of its legislative process. Differently from most legislative initiatives in Brazil, which are revealed and discussed almost entirely inside the Chamber of Deputies, with few and punctual public hearings, the Civil Rights Framework was elaborated from its very beginning as a big public hearing, through the same medium it would later guard: the Internet.

Thus, a site (www.culturadigital.org/marcocivil) was created, where any citizen could contribute with suggestions regarding the bill’s elaboration. In two phases, first ideas about principles and values that should guide the legislation were considered: privacy, neutrality, freedom of speech. Afterwards, actual bill texts were suggested.

Besides allowing direct suggestions, the site also enabled citizes to comment on suggestions from other citizens, in a true national virtual forum. During several stages, thousands of suggestions and tens of thousands of comments were launched in the platform to be analyzed by the Ministry of Justice in the elaboration of the bill. Besides comments and suggestions on the public query, comments posted to social networks like Twitter and Facebook were also taken into consideration in the first Brazilian radical democratic experience.

Main factors

The Civil Rights Framework dedicates to each governing principle at least a chapter, section or article. Thereby, the following subjects are approached, in order:

Net neutrality

One of the first subjects touched by the Civil Rights Framework, and also one of the most polemic, is net neutrality, established on the 9th article. Expanded on another chapter in this syllabus, net neutrality ensures that there is no discrimination in data packages sent from a given spot on the network to another spot when it comes to access providers, represented in Brazil by Velox, GVT, NET, among others.

Thus, these providers shouldn’t, for commercial reasons, prioritize a data package from a given service over another. In other words, GVT couldn’t, for instance, speed up voice calls via WhatsApp and slow down FaceTime ones due to a hypothetical contract firmed between the two (WhatsApp and GVT). Blocking a service for the same reason, therefore, is also out of the question.

The net neutrality principle aims to ensure the original status of innovation and competitiveness of the Internet, where any new company can compete – at least in terms of connection speed – evenly with bigger, already established companies.

Log keeping

Afterwards, the Civil Rights Framework deals with, in articles 10 to 17, the issues regarding log keeping. These records, done by providers of access (regarding which user has which IP and connection schedule) and application (regarding which IP accessed the service and when) alike are useful in identifying responsible persons for committing anonymous crimes on the Internet.

Before the Civil Rights Framework, it was common that access and application providers kept logs for up to three years. The Framework, aiming towards balancing the privacy of users without rendering impossible criminal investigations, reduced these limits to six months for application providers and to one year for access providers. These records can only be revealed to the authorities through a court order. Besides that, it’s forbidden for access providers to keep logs regarding application access. Namely, GVT can’t keep records on which sites their users visited.

Providers’ civil liability

Another section of great importance is the one regarding providers’ civil liability for content generated by third parties, in the 18th article. Also expanded upon in another chapter of this syllabus, the issue goes beyond the matter of when can application providers (messages, social networks, videos) be liable for content generated and published by third parties.  It is a central subject, as it touches matters of freedom of speech and hate speech.

Access providers are simply exempt of liability for any inappropriate content published by its users on the network. Doing the opposite would be disproportionate and irrational, especially considering the provider is ensured not to interfere in the content for privacy reasons.

On the other hand, application providers, which compose the majority of services accessed on the Internet, can only be liable if they don’t obey court orders requesting the removal of content that is considered inappropriate. In other words, it’s not up to Facebook to know which content violates user rights and to be jointly liable for it, only if Facebook disobeys a court order requesting the content’s removal.

The only exceptions to this rule regard content that is copyrighted or includes nudity. In both cases, the provider will be liable if it doesn’t remove the content following extrajudicial notification. The reasoning behind this is the urgency involved. More damage will be caused if the provider waits for a court order to remove the nudity images published without consent from the involved ones than it would be caused if the provider removed images published with consent and later restored them when if the involved ones request it.

Clear rules for providers’ civil liability are central in order to broaden freedom of speech. Without them, application providers usually remove more content than necessary due to fearing that a given content eventually violates one’s rights and makes both the provider and the individual publisher liable for it. Being exempt and knowing that it will only be liable if it doesn’t follow court orders, the provider will allow for more content to be posted, and the decision regarding eventual violations stays in the hands of the Judiciary.

Final regards

The Civil Rights Framework has revealed itself as an innovative legislation, from its legislative process to its very content. Praised internationally, it was a pioneer in a now established tendency of constitutional legislations for the Internet, recently serving as an inspiration for the Italian Declaration of Internet Rights and for a future rights legislation in the French network. Its defense of net neutrality was cited as an argument in favor of the net neutrality on the US, which would later be concretized.

There still is, however, work to be done. Several points of the Civil Rights Framework are still depending on a decree with a more detailed regulation, especially the matters relating to log keeping and net neutrality. At the time of this writing, a new public query regarding the Regulation Decree of the Civil Rights Framework is active, accepting suggestions and comments just like the original law.