Marco Civil da Internet as a democratic experience in Internet regulation


[1]Everybody knows that Brazil made a mess in the World Cup of 2014. But what is less known is that the country had two important victories in the game of “Internet law and politics” last year. The first was the creation of a civil rights framework for Internet use – known as “Marco Civil da Internet” (Law 12.965/2014). The second victory was the multi-stakeholder meeting for Internet governance – the “NETmundial” event, which pointed to the necessity of building new forums for debates on the structures and rules that might influence the way we all use the Internet. Both happened in April 2014 and are producing enduring effects inside and outside the country.

But let me explain why the creation and implementation of the Marco Civil da Internet (MCI) is a pioneering democratic experience in Internet regulation and should be of interest for anyone working on law and technology. This text might show the reader the importance of the public consultation that the Brazilian government is holding until February 28th. It might also clarify why there is a need for further regulation after the Brazilian “Internet’s Constitution”.

Understanding the Marco Civil da Internet

The “Marco Civil” is a Federal Law that “establishes principles, guarantees, rights and obligations for the use of the internet in Brazil” (art. 1º). Instead of criminalizing specific actions in the online world, as many representatives did in the last decade in Brazil, the Law established basic principles for future regulations in the country.

The MCI did not come out of the blue in 2014. It is the result of more than five years of public debates between the Ministry of Justice, the Labour Party, the opposition, non-governmental organizations, activists and scholars. These debates took place inside and outside the Congress. The Ministry of Justice used online platforms to discuss the content of the legal framework with civil society.

It is not my goal to provide a full account of the Law (see the work done by Article 19). However, it is important to understand that, according to the MCI, the “discipline of internet use” must follow the principles of freedom of speech, protection of privacy, protection of personal data, preservation and guarantee of network neutrality, preservation of stability and functionality of the network, liability of the agents according to their activities, preservation of the participative nature of the network, and freedom of business models promoted on the internet (art. 2º).

One of the pillars of the Marco Civil was the establishment of rules regulating the activities of the so called internet intermediaries, divided into “connection providers” and “application providers”. In particular, the law included specific obligations on data retention, and a regime of liability limitation for disputes over the content produced by their users.

The Law also recognized that the access to the Internet is essential to the exercise of citizenship, and defined general rules for net neutrality (art. 9º), stating that the “discrimination of traffic” shall be regulated by the government. In an important move towards collaborative governance, the Law defined that the Brazilian Internet Steering Committee – a multi-stakeholder organization created in 1995 – shall be consulted before any decision by the President on this matter. This is a strategy to ensure that the technical community will be consulted before any decision by the Executive power.

Another important step was the creation of general rules on personal data protection. The collection and processing of personal data may only occur after the user’s consent (art. 7º). For the first time the right to data protection is recognized for all Internet users in Brazil. This might seem banal for Europeans (considering the long tradition of data protection laws), but it was a major legal development for Brazilians.

The MCI was important for four reasons: it created a civil rights framework for the use of Internet (not criminal); it was built on democratic procedures and online platforms that guaranteed the participation of civil society; it provided guidelines for policy makers for future regulations; and it solved many interpretative problems faced by judges in deciding cases (especially those involving liability of service providers).

However, the MCI is not a silver bullet for all the legal problems regarding the Internet in Brazil. Soon after the Law was enacted, the government announced that in 2015 the MCI should be regulated, clarifying legal concepts that need to be better explained (or which cases they might be applied).

Regulating the MCI: a new democratic experience?

The MCI provided general rules for net neutrality, privacy, data protection and data retention. However, the Law did not create specific norms about these topics. In order to regulate these issues, the Ministry of Justice created in January 2015 a new participatory platform to discuss how the MCI should be regulated.

The government claims that there are two important topics to regulate. The first is the exceptional rules for net neutrality (e.g. what “emergency services” means). The second is the security procedures that companies should adopt to protect the personal data of its users. Besides these two topics, citizens can propose new debates regarding the content of the MCI.

In order to organize the participatory procedure, the Ministry of Justice created a very clear “terms of use” for the platform. These terms set up the basic “rules of the game” for participation. It shows what one citizen can do and cannot do in this online debate. It also clarifies that citizens will not simply “vote on proposals”. The platform’s goal is to collect qualified opinions. What matters is quality and not quantity.

In order to stimulate qualified debates, the platform for the regulation of the MCI is organized in four lines: net neutrality, privacy, data retention, public policies and the role of the State. In each of these lines, any citizen can propose a debate on one specific topic.

The interesting feature of the platform is that citizens can comment on new topics, creating a written dialogue among them. These comments can also be evaluated by fellow citizens. The platform was design to emulate how blogs and social networks function. The idea is that people can engage in a productive discussion about how the MCI should be regulated. This knowledge will then be filtered by the government and used to elaborate an Executive Decree.

It is important to notice that this democratic mechanism places the lawyers in a new position in the society. Instead of being the one responsible for legal doctrine in small circles (influencing law-making authorities), the lawyer is placed in the position to translate legal concepts and technicalities into comprehensive terms for any citizen.

The idea is that lawyers should help people in practical and political terms (as done by some professionals involved with research and advocacy organizations in Brazil). Legal knowledge is produced by lawyers to citizens. Citizens participate and help to create law and regulations with the law-making authorities. This is a truly democratic perspective on the role of lawyers and legal knowledge.

It is not clear if the regulation of the MCI will be as participatory as activists and the government expect. Even so, this web-based institutional experimentalism should be observed closely. It might be interesting to compare the Brazilian experience with the Italian consultation for the Dichiarazione dei Diritti in Internet. This may be an emerging field for comparative law and technology in the following years. It could be intriguing to understand the institutional and cultural differences of participatory experiences in diverse countries.

[1] Rafael Zanatta is a LLM canditate at the International University College of Turin. Master of Laws at the University of São Paulo. Member of the “Internet, Law and Society Nucleus” of the University of São Paulo.

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