Legal analysis

Brazil: Civil Rights Framework for the Internet

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ARTICLE 19

26 Jul 2012

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In July 2012, ARTICLE 19 analysed the Civil Rights Framework for the Internet in Brazil (the ‘Marco Civil’). In particular, we examined the compatibility of the Marco Civil against international and comparative standards for the protection of freedom of expression. 

ARTICLE 19 supports the adoption of the Marco Civil since our analysis shows that, on the whole, it is a progressive piece of legislation with generally satisfactory safeguards for the protection of freedom of expression and the right to privacy on the Internet. In particular, we welcome the fact that Internet Service Providers may only be held liable for failing to comply with a court order requiring them to takedown  or block access to third-party content. Similarly, we are pleased that internet users may only be identified and their communications data disclosed following a court order and this for limited purposes, namely criminal investigations and criminal proceedings. Finally, if the bill is adopted, Brazil will be one of the first countries to guarantee net neutrality in South America, an important step in securing internet freedom in the continent as a whole.

ARTICLE 19 urges the Government of Brazil and all stakeholders, including civil society organisations, to rally around the Marco Civil and to promote broader public understanding of its provisions before and after it has been enacted. 

At the same time, there are a number of ways in which the Marco Civil could still be improved to be more fully in line with international standards for the protection of freedom of expression. ARTICLE 19 makes a number of key recommendations on how this could be achieved and hopes these will be incorporated to the final version of the law.

Key Recommendations

  • Article 7 (5) should make it clear that the communications data of internet users may only be disclosed following a court order and where necessary and proportionate for the protection of limited interests, such as the investigation of serious crimes;
  • Article 9, sole paragraph should be amended in order to set out more clearly that internet filtering or monitoring is not allowed except wherenecessary for technical reasons related to maintaining network integrity. Article 9 mentions that there should be no discrimination in Internet traffic, except for technical reasons/network management. That’s basically preserving the network neutrality principle. This does not necessarily cover internet filtering and monitoring which is addressed in Article 9, sole paragraph. It is therefore important to re-emphasise that internet filtering or monitoring is only permissible for technical purposes (at least in this particular context, filtering is perfectly acceptable, for example, when it’s user-controlled), otherwise it would remain too open for interpretation (‘except in the circumstances provided by law’).
  • Article 11 (2) should clearly provide at the outset that the extension of data retention periods may only be granted by a court and where necessary and proportionate for a very limited range of purposes, such as national security or the investigation of serious criminal offences. Similarly, access to communications data should only be granted to a limited number of public authorities. Finally, Article 11 should provide for a cut off period beyond which it is no longer permitted to retain and store communications data.
  • Article 10 (3) should be amended to clearly lay down the penalties for failing to comply with data protection requirements;
  • Chapter IV should be amended to provide for more specific measures to protect net neutrality in line with the recommendations of the special mandates for freedom of expression. 

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