A Brief History of a Collaborative Law

This post by Sergio Branco is part of a series related to the 2014 Milton Wolf Seminar on Media and Diplomacy: The Third Man Theme Revisited: Foreign Policies of the Internet in a Time of Surveillance and Disclosure, which took place in Vienna, Austria from March 30 – April 1, 2014. The 2014 seminar is jointly organized by the Center for Global Communication Studies (CGCS) at the University of Pennsylvania’s Annenberg School for Communication, The American Austrian Foundation (AAF), and the Diplomatic Academy of Vienna (DA).  For more information visit the seminar webpage and Facebook page.

I.

In September 2006, when Brazilian model Daniella Cicarelli was recorded having intimate moments with her boyfriend in a Spanish beach, she would have never imagined she would help engender an unprecedented forum of discussion for Brazilian internet law.

The unauthorized video was a huge success online, and street vendors even sold copies of the video to people who did not have internet access. Soon after the video was uploaded, Cicarelli sued Google and several major Brazilian websites, demanding financial compensation for moral damages and the immediate removal of the video.

After the first decision (not favorable to the plaintiff), Cicarelli got a judicial order from the Court of Appeal in the State of São Paulo requiring the defendants to remove the video from their servers. However, the decision proved difficult to enforce; every time the video was removed someone else soon uploaded it again. For this reason, Cicarelli requested that the entire YouTube site be taken down; and the Court agreed.

For about two days, millions of Brazilians could not access YouTube. Under huge social pressure, the Court retracted its decision and YouTube returned to Brazil. In the wake of the takedown, it was evident that Brazil needed a new law to determine internet principles and clearly define who was responsible for content uploaded to the net. Many criminal laws were being discussed in Brazil at the time; but it was evident that criminal responsibility should be the ultima ratio, the last resort. Before criminalizing social conduct, people should know their legal rights, obligations, and civil responsibilities. This was the genesis of the Marco Civil (the Civil Law for Brazilian Internet).

Because the Marco Civil aimed to establish rights and duties for internet users, nothing seemed more reasonable than to produce the text of such law in the internet domain. In 2009, a platform was launched for discussion about internet regulation. Between October 29 and December 17, 2009 any interested person could contribute comments on the following topics: privacy, freedom of expression, right to access, civil responsibility for third party content, net neutrality and governmental data. More than 800 contributions were posted during this period of public consultancy.

After this first phase, the Ministry of Justice drafted the initial version of the proposed law for discussion. After a period of public debate (April 8 – May 30, 2010), the final text was sent to the Brazilian Congress.

II.

April 23rd, 2014 was a historical day for the Brazilian internet. The collaborative draft of a civil law for the internet was approved by both houses of parliament and signed by President Dilma Roussef, officially becoming law 12.965/14.

In general terms, the Marco Civil (hereinafter we will refer to the approved law as “Marco Civil”) works as a law of principles, outlining the fundamental rights of users and how they are ensured. The law gives importance to different guiding principles of Brazilian internet use (art. 3): guarantees to freedom of expression, communication and manifestation of thought under the Federal Constitution; protection of privacy; protection of personal data; preservation and guarantee of net neutrality; and freedom of internet business models, provided that do not conflict with other principles set out in this law. There were, however, several points of contention.

Net neutrality was a controversial issue during Congressional debates, but it was finally incorporated into the final version of Marco Civil. According to Article 9, whoever is responsible for transmission, switching, or routing has the duty to treat data packets isonomically, irrespective of content, origin and destination, service, terminal, or application.

Civil responsibility was another sensitive subject. An initial suggestion was to adopt a notice and takedown system. Civil society, however, claimed that this would remove the judicial prerogative to decide when content represented a legal infringement and provide an open door to censorship. For this reason, the text was changed to provide that, as a general rule, only judicial commandments might force the removal of third party content from websites.

Finally, data protection became a central concern after Wikileaks and the Snowden revelations. Although Brazil does not have a specific law for data protection, Marco Civil (Article 3) refers to data protection as a principle to be pursued; the internet user has the inviolable right to transmit and store private internet communications, that can only be impinged upon by court order, as provided by law (Article 7).

Marco Civil will go into effect at the end of June 2014. Although some of its provisions need further legal clarification and expansion (the responsibility for copyright infringement is out of the scope of Marco Civil, for example), the approval of this collaboratively-developed law may represent a new form of public debate and direct democracy. Now that the internet is more than twenty-five years old, naïve times are over. Let’s use our expertise to promote and protect it.

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Sérgio Branco, Jr. is a Member and Director at Institute of Technology and Society of Rio de Janeiro (ITS-Rio) and Vice-Director of the JD courses at the IBMEC University. Mr. Branco holds a Masters in Law and a Doctorate Degree in Civil Law from Rio de Janeiro State University (UERJ). He is a specialist in Cinema (Fundação Getulio Vargas-Rio) and in intellectual property (Pontifical Catholic University-Rio). Former researcher and project leader at the Center for Technology and Society at the Fundação Getulio Vargas School of Law in Rio de Janeiro (2005-2013). He is also a former chief-attorney of the Brazilian National Institute of Information Technology – ITI, in Brasilia (2005-2006). Lawyer (1997-present). Twitter: @sergiobranco

 

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