Statement

Brazil: Halfway to a civil rights framework for the internet

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ARTICLE 19

14 Apr 2014

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ARTICLE 19 welcomes the adoption of the Marco Civil da Internet (Civil Rights Framework for the Internet) by the Chambers of Deputies on 25 March 2014. The bill needs to be approved by the Senate before it can be signed by the President.

“Adoption of the Marco Civil is vital to ensure protection of the right to freedom of expression online in Brazil. ARTICLE 19 supports this law, although it could be improved further,” said Paula Martins, Director of ARTICLE 19 South America.

The Civil Rights Framework was developed through a consultation process with the full participation of civil society, including discussion and debate over online platforms. It provides good general safeguards for the rights to freedom of expression and privacy, as well as a guarantee of net neutrality. Other positive provisions cover the liability of internet intermediaries. The weakest part is the obligation to retain server logs for six months, which is the main campaign focus during the Senate debate.

The intention of the Brazilian Government is to sanction the new Law during the NetMundial meeting in late April 2014.

Positive features of the Bill

ARTICLE 19 believes that the Civil Rights Framework is a positive piece of legislation due to the following features: 

-        Respect for freedom of expression online

One of the main principles of the bill is the respect for freedom of expression online. The bill states that freedom of expression is a necessary condition for the full exercise of the right of access to the internet.

-        Net neutrality guarantee

This is the principle that the Internet and all its data must be treated equally, not discriminated against or treated differently depending on user, content or other reasons. The final bill only allows such discrimination or degradation for technical or emergency reasons.

-        Recommendations of adoption of open standards and open data  

The bill explicitly states that the public sector has to give preference for the adoption of free and open technologies.

-        General protection of privacy

The bill only allows access to content of communications when there is a court order. On this point, the Marco Civil stands at the forefront of internet legislation worldwide.

-        Connection restrictions are not allowed, except in the case of a lack of payment

No matter the kind of content a person accesses or shares on the Internet, nobody can disconnect them.

-        Prohibition on the transfer of personal data to third parties without authorisation

Personal data is protected from the known data exchange made by companies and governments

-        Prohibition on collecting data without permission

Nowadays, it is common to see companies collecting all data possible from users without their consent or any court authorisation.

-        Guarantee of exclusion of personal data when people decide not to use an application anymore.

This feature supports the idea that says that unused data is dead data and it cannot keep being used for companies commercially or for any other purpose.

-        Service providers are not allowed to retain application data

The separation between these two different processes is fundamental for users’ privacy

-        Service providers do not hold liability for contents

The providers have no responsibility for the users’ action. The only sanction against the provider on this case will happen if it does not fulfill the court order to remove content.

-        The obligation for the state to have a plan to address digital divide challenges

The bill intends to stimulate the government to establish goals, plans and an agenda specific for the use and development of the Internet.

-        The obligation to adopt a multi-stakeholder model of internet governance at all levels of the federation

It is necessary to establish transparent, collaborative and democratic governance mechanisms with the presence of all society sectors.

Negative features of the Bill

ARTICLE 19 believes that there are also aspects that still need improvement:

-   Obligation of log retention for six months

The retention of such information is a risk for privacy and freedom of expression.   Personal information  may be leaked to companies or the government without user consent and it permits business models that retain your data.

-   Respect for “business models” as a guiding principle

While respect for business models is an important point, upgrading them to the level of a guiding principle alongside respect for fundamental rights is concerning. In addition to be being too broad and undefined, it could be used to justify interpretations of the law’s provisions that favor protection of business interests over public interests and human rights concerns.

-    Absence of guarantees that obligate companies to delete connection logs

The law does not specifically obligate a server to delete connection logs which could be interpreted to allow the retention of this kind of information by companies.

-   Broad number of governmental authorities that can have access to personal data

The law allows the administrative authorities, for example, to access personal data like professional qualifications, addresses and affiliations.

-   No time limits for data retention
Providers must retain data for more than one year upon request by the authorities. However, the bill does not set a time limit for such retention, leaving it undefined.

-   Notice and take down provision for porn revenge cases

Although so-called “revenge porn” cases cause serious damage to the victims, the providers must not be responsible for deciding what content to take down, because they are not in a good position to judge if the content is legal or not. Only a court should make the decision.

-   Special courts for defamation cases

Creating special courts for defamation cases is not acceptable when Brazil’s defamation provisions and court decisions are completely out of line with international standards.

ARTICLE 19 appeals to the Senators to avoid proposing amendments that could damage the bill’s positive aspects and approve it as soon as possible. The Marco Civil should become a progressive law of reference for several countries when looking to protect freedom of expression online.