Marco Civil Hailed as Step Forward by Rights Activists

05/20/2015 - 15h19

The law provides protection against government intervention, says Joe Leahy

When the US-based ride-hailing application Uber came to São Paulo, it ruffled more than a few feathers.

In April, about 2,500 traditional taxi drivers demonstrated in front of the city's Pacaembu stadium against the site, where people can hire a car on the internet, before setting off in convoy through the city, causing traffic jams.

The taxi drivers' union, Simtetaxis, obtained a court order ruling the app was illegal, but in early May this was overturned. The court decision in Uber's favour was thanks to Brazil's Marco Civil. The internet law, which came into effect last year, has in some respects broken new ground in internet regulation, says Ronaldo Lemos of the Rio Institute of Technology and Society, a think-tank.

"The law has had a big impact on the legal system in Brazil," says Mr Lemos. "Generally, the lower courts are still resisting using the law and are making decisions that are completely against it, but when these decisions get to higher courts they have been overturned."

Signed into law by President Dilma Rousseff at NETmundial, a global meeting on the future of internet governance held in São Paulo in April 2014, the Marco Civil was born in controversy.

Though in the making for years, its final deliberations in Congress were overshadowed by the revelations from Edward Snowden, the former employee of the US National Security Agency, that Washington had spied on world leaders, including Ms Rousseff.

In the backlash, Brazil contemplated for a time incorporating into the Marco Civil what would have been some of the harshest controls on data storage and privacy in the world.

These included proposals that would have forced companies to store data on Brazilian users in Brazil. This is as likely to have been as costly in terms of setting up new data centres as it would have been futile, say analysts, as data are not a physical commodity that can be confined within a nation's borders.

In the event, Brazilian politicians were dissuaded from taking this step. While they included other measures considered difficult to implement, such as demanding that authorities have access to data on Brazilian users even if it is stored in other jurisdictions, the law was hailed as a success for internet civil rights activists.

"I am asking countries everywhere to follow Brazil's example and develop positive laws that protect and expand the rights of users to an open, free and universal web," said Sir Tim Berners-Lee, the inventor of the world wide web, at NETmundial.

In a commentary on the regulations, FGV Direito Rio, a law school, said the legislation applied principles such as freedom of expression and privacy, which are already protected by the constitution, to the online environment.

The law places responsibility for content on the author rather than the internet service provider (ISP) in most cases. Previously, ISPs had been pulling content down of their own volition rather than risking facing the courts, which were giving conflicting decisions on who was responsible for offensive content.

"Indiscriminate content removal may be detrimental to fundamental rights, such as access to information and freedom of expression," FGV Direito Rio said. The law's proponents say one of its chief advances in terms of international standards was its establishment of "net neutrality", which prevents internet access providers from being able to control access to "lawful" content.

Telecoms companies had argued they should be able to charge premium broadband rates for data-heavy content because this used more bandwidth, effectively dividing the internet into fast and slow lanes depending on content and customers' ability to pay the bill.

On the negative side, the law forces ISPs to keep logs of traffic of their users for between six and 12 months. This information can be demanded by the authorities with a court order. A similar regulation in Europe was declared invalid by the courts last year.

"The mandatory data retention for ISPs, which created a mechanism that can hardly be considered proportional and balanced, especially after the European Court of Justice... declared the EU Data Retention Directive invalid," FGV Direito Rio said in its commentary.

Mr Lemos of the Rio Institute of Technology and Society says that, even with its flaws, the law is proving to be a better protection of Brazilians' rights online than the previous framework.

Under it, Twitter was able to stand up to Federal Police requests for data that were not supported by court orders. The law says court orders must be supported by sufficient reasons as to why the authorities want access to the data.

Mr Lemos says the law was a step forward, as it laid out clear rules for the internet and ensured the government did not have the right to intervene in terms of free speech or content.

For Uber, that is good news. While it might face other challenges, the government will have difficulties stopping its online operations. "Uber continues offering its services to Brazilians," the company said after the last court ruling.

Copyright The Financial Times Limited 2015