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Marco Civil da Internet - A civil rights charta for the net

b2ap3_thumbnail_brasil-http.jpgThe first Charta of civil rights for the internet is reality – in the year that the internet turned 25. With the “Marco Civil da Internet” Brazil is the first country with a law that guarantees civil right in the use of the internet and addresses issues as net neutrality, privacy, freedom of speech/expression and access to the internet.

 

But not only the law itself is remarkable and standard-setting – so is also the way to write this law. The process started on October 29th, 2009 and ended in 2014. On March 25th the Brazilian Congress (Camaro des Deputadeos) approved Marco Civil, followed by the Senate (Senado Federal) on April 22nd.  With President Dilma Rousseff signing the bill at the opening of the international internet conference Netmundial it became law on April 23rd, 2014.

This Charta of rights and obligations for users and providers around the use of the internet has been written in an open and collaborative process. Through an online platform and early stage concept was open for proposals and critic. More than 2,000 contributors participated, individuals, various organisations and groups, private and public sector participated. This process was supported by public hearings and discussions. Even Sir Berners-Lee, the inventor of the internet, supported the bill.

At the end, after the concept had been ready for legislation, the process nearly crashed due to efforts of the industry lobby, attacking especially net neutrality. Fortunately we then had the NSA affair in 2013. That helped the law to come back on track and it shows that the NSA discussion has also positive effects!

 

The most important point of the Marco Civil bill are freedom of expression, privacy rights, net neutrality, safe harbour for providers and access to the internet.

  1. Freedom of expression: Article 2 and article 3 (and at various points later in the text) freedom of expression is addressed. The law makes clear that this principle is a prerequisite of a functioning internet and that is has to be respected at all times.
  2. Privacy rights: addressed at several places (e.g. article 3 and article 8). The law guarantees the right to privacy – and gives users rights to the content they provided to third parties, e.g. for the usage of apps. Users have e.g. the right to request that all data they provided will be deleted when they stop using this app or third party. Furthermore companies have to oblige to Brazilian privacy regulation, no matter where they store the data. Violation of those principles is also possible based on a court order.
  3. Net neutrality: article 3 and 9 enshrine net neutrality as basic principle. With including this principle the law ensures that providers are not allowed to treat data differently based on their source e.g. (see also this blog for more background on net neutrality). There had been a strong lobby was against this principle, but at the end the open, egalitarian principle, that made the internet to what it is today, won.
  4. Safe harbour for ISP’s and online service providers: providers are not liable for the content of third parties (article 19). This is also an important principle to guarantee free expression – and providers are also not forced to scan and potentially censor content.
  5. Access to the internet is promoted by the law (article 4) and is seen as essential to the exercise of citizenship (article 7).

 

b2ap3_thumbnail_marco-civil-da-internet_infogrfico.jpgOf course there are opponents to this bill. The two main arguments voiced against Marco Civil are around censorship and around collection of metadata. It is argued that this bill would open the door for censorship by the government. One argument focuses on the fact that at several points of the bill is stated something as “except if ruled otherwise by law”. Well – this is always the case, with or without Marco Civil. There can always be new legislation – that makes things illegal that are allowed now. This has nothing to do with this legislation and this bill does not make this easier. The other argument around censorship focuses on the right to request content to be deleted if this violates privacy rights. Yes, this can theoretically be the case. This is something to be seen in practice – and how judges address this. Via case law a balance has to be found between freedom of expression and privacy rights. As freedom of expression is addressed earlier this principle will usually have more weight than privacy, but this has to be seen in practice. It is good that privacy rights are finally addressed in a law on the internet and fine-tuning in a later stage will have to get rid of potential sharp edges.

The collection of metadata is a more serious issue. Based on article 15 providers are obliged to retain records of access to internet applications and article 16 states that those records have to be kept for 6 month. This is something to be reviewed – and a guideline could be the recent ruling of the EU court on data retention. At least the bill is pretty clear that judicial authorisation, usually in the way of a court order, is needed to access those data. But 6 months is way too long – and it can be questioned if it is needed at all.

The bill is for sure not perfect – but a bill addressing conflicting rights as free speech and privacy rights can never be perfect. It’s always a balance that can only be found over time – and that will change as well with society developing. But Marco Civil is a pretty complete piece of legislation – fixing for the first time many essential right with regard to the use of the internet. An example that should be followed by other countries!

 

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