Brazil’s “Internet Bill of Rights” Regains Momentum in Congress

This week, Brazil’s lower chamber of congress, the Chamber of Deputies, voted in favor of Marco Civil da Internet, a comprehensive Internet rights bill. Sometimes called the “constitution for the Internet” or the “Internet bill of rights,” Marco Civil contains strong rights-based principles for law relating to the Internet, as well as specific provisions to protect user privacy and free speech rights, promote Internet access, preserve net neutrality, and shield intermediaries from liability for user-generated content. Marco Civil began with a promising, highly inclusive public consultation process, but its progress has been marked by numerous revisions, competing proposals, and delays. Given the challenging history of the bill and the many important provisions in the legislation, the vote is positive step for Brazilian Internet users and a major victory for Brazilian civil society.

The net neutrality section of the bill lays out a good general prohibition on traffic discrimination by Internet access providers – the core requirement for protecting net neutrality. There is some vagueness in the law that will be fleshed out in future rules, which will need to be be scrutinized for potential loopholes. But the process for developing those rules, which includes a consultative role for not just the telecom regulator but also the Brazil’s multistakeholder Internet Steering Committee, holds promise that all relevant voices will be represented to ensure the protection remains strong.

On intermediary liability, the bill establishes a strong and commendable baseline rule that content hosts and application providers will not be liable for user content unless the provider ignores a court order to remove specific material. Copyright claims are exempted and will be governed by another law currently under consideration. More troubling, though, is an exception that requires unadjudicated notice-and-takedown for materials containing nudity or sexual acts of private nature. This provision is vague, potentially overbroad, and vulnerable to abuse. It should be reconsidered as the bill progresses.

CDT is pleased to see that the current version of Marco Civil omits any data localization mandates. NSA spying revelations in 2013 sparked outrage in Brazil and led to proposals that the bill require global Internet companies to store data about Brazilians on local servers inside the country. As CDT has discussed previously, data localization mandates carry significant risks to the open Internet, access to information, and free expression, all values that Marco Civil seeks to uphold. The potential costs to innovation and economic development are also significant.

CDT remains concerned about data-retention mandates currently included in Marco Civil. Even with protections, such as a requirement that law enforcement to receive a court order before accessing data, data-retention mandates raise concerns about privacy violations and the potential for abuse. These laws also impose costs on service providers working to securely store user data under the mandate.

While there remains room for improvement, there is no doubt that Marco Civil is a groundbreaking piece of legislation. The Brazilian congressand President Dilma Rousseff should work swiftly to see the bill through to law. Over the last year, Brazil has positioned itself as a champion of human rights online and a facilitator of progressive Internet governance (see, for example, CGI.br Principles for the Governance and Use of the Internet, which have guided Brazil’s domestic multistakeholder Internet policy development processes). In less than a month, Brazil will host the Global Multistakeholder Meeting on the Future of Internet Governance. The passage of Marco Civil will demonstrate that Brazil is taking a lead in implementing rights-based approaches to Internet legislation.