Extraterritorial reach of the Marco Civil. A guide to interpretation of article 11’s key criteria

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On January 28th, 2015, the Brazilian Ministry of Justice opened a consultation period aimed at gathering public comments for regulatory implementation (also known as “regulation”) of the Brazilian “Internet Constitution” (Law No. 12.965/2014, famously known as “Marco Civil”). This constituted a second step in the highly innovative and participative approach adopted in Brazil for the development of Internet law and policy, as already described on this blog.

On the same day, the Government opened a consultation on the proposed Data Protection Bill (PL No. 181/14). Both consultations gathered a substantial amount of comments and terminated on April 30th, 2015. The discussions will now be fed into the parliamentary process that will lead to two different legislative instruments, both with very important consequences on the services provided online to Brazilian consumers.

Besides the innovative process and the progressive character of some of the rules and principles under consultation, there is one additional reason why this debate should be followed with interest not only by Brazilians, but more generally by businesses, regulators, and consumers worldwide: their extraterritorial reach. To put it bluntly: under the current formulation of the Marco Civil, various activities conducted outside the Brazilian territory may still trigger the obligation to comply with Brazilian law, including any administrative or regulatory burden that it imposes.

Given the above, the attached contribution submitted in the context of the consultation for the regulation of the Marco Civil suggests criteria that could be used to prevent the overreaching of the Marco Civil obligations in potentially problematic cases.

Marco Civil Consultation Extraterritoriality

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