What’s holding back Marco Civil, Brazil’s internet bill of rights?
4:19pm | 27 September 2012 | by Access Policy Team, English
By Carlos Affonso Souza, Access Policy Fellow
Vice-Coordinator, Center for Technology & Society
Fundação Getulio Vargas Law School, Rio de Janeiro.
After two previous delays, the Marco Civil, Brazil’s national bill of rights on internet liberties, was supposed to be up for a vote on September 19th.
The international community has closely watched the bill’s progress, as many see it as a framework for countries around the world, given it’s goal to protect online speech, privacy, and granting intermediaries legal cover for hosting controversial content. But, the vote was cancelled, again, for a third time. At the initial vote, there was no quorum. The second time, as some has feared, the meeting end up being cancelled. As of now, the voting is expected to take place sometime after the October elections.
So what is holding back the voting on Marco Civil?
The first issue is the net neutrality provision. As currently written, the provision (Article 9) states that, apart from the general net neutrality principle, cases in which some discrimination or degradation of traffic may be permitted will be further regulated by Decree, with due consultation of the Brazilian Internet Steering Committee (CGI.br).
The whole controversy here is about the role played by the CGI.br. The Decree that currently regulates the activities of the CGI provides that it has responsibility for “proposing norms and proceedings related to internet activities regulation” as well as the “recommendation of patterns and proceedings related to technical operations for the internet in Brazil.”
The Government felt that too much power was given to the CGI.br and some important players spoke out in favor of having ANATEL, the Brazilian Telecommunications Agency, taking this position on the net neutrality clause.
Here is what Mr. Paulo Bernado, Minister of Communications, said in an interview on his thoughts about the attributions of the CGI in the Marco Civil:
“How can you have an obligation to consult the CGI.br? Why not having to consult the Getulio Vargas Foundation or the Federation of Industries of the State of São Paulo instead? Why don’t we go on and hear what the Association of Rice Farms of the State of Rio Grande do Sul has to say? What’s the logic?”
Later in the same interview, the Minister states, “the regulation of net neutrality has to stay with ANATEL. I don’t see why there is any doubt about it.”
Such remarks are interesting not only in the point of view of the relations between the Ministry of Communications and the Telecommunications regulatory agency, but also because Paulo Bernardo is himself a member of the CGI.br. In addition to the usual political football over internet regulation at the national level, the power struggle for the attribution of having a say on the net neutrality principle digs deeper into the international internet governance debates.
CGI is a multistakeholder entity. Members from the government, civil society, the business sector, and academia sit on its board which makes recommendations for the Brazilian internet. In recent years CGI approved a document on “Principles for the Governance and Use of the Internet” that has been widely discussed in international forums and helped give rise to the Marco Civil.
So in the same moment that internet governance actors prepare to attend the International Telecommunications Union (ITU) meeting in Dubai later this year to discuss a possible expansion of the ITU's mandate to include aspects of internet policymaking, in a move that has been largely regarded as an attempt to impose further regulation to the global internet in a non-inclusive and certainly non-multistakeholder fashion, with clear impact on the internet’s openness, the same game seems to be playing out on the national level.
At the end of the day, however, the Marco Civil net neutrality provision does not actually create any new attribution to the CGI; it's actually a false controversy. Gazing into the future of internet regulation, and its inevitable confrontation with telecom regulation, it seems that the Brazilian government suddenly felt uncomfortable with having a multistakeholder body being responsible for recommending standards.
Other concerns have been thrown around in Brasilia in the week of the voting of Marco Civil. The intermediary’s liability provision (Article 15) is another point of controversy. As currently worded, ISPs would only be held liable in case they fail to comply with a judicial order demanding the removal of a certain content. Major online service providers such as Google, Facebook, and Mercado Libre delivered a public letter on the day of the voting supporting the Marco Civil. It is no wonder that these companies feel that Marco Civil will provide them with a better ground to operate as they would not be held liable (at least for civil offenses) if they keep a certain content online even after being notified by the alleged victim. The reason behind this provision in the Marco’s Civil is quite clear: somewhat inspired by Section 230 of the United States’ Communications Decency Act, this provision would create immunity for online intermediaries.
Among the opponents of this provision are those who feel a notice and takedown system would work better for offending content, which would remove content more expeditiously. A group of Public Prosecutors delivered a report on Article 15 stating that as it is presently written, its focus is too much being directed to the protection of free speech, arguing that a number of other rights may be infringed if no setting of standards for ISPs is created to remove inappropriate content. Another concern about content removal is clearly focused on the copyright industry and the ability that rights holders would have to take down contents that may constitute copyright infringement. A clear position has been adopted since the start of the Marco Civil drafting process that the initiative should not interfere with the Copyright Law Reform process that is being led by the Ministry of Culture. However, there is still some discontentment about that as well.
So it all came to the September 19th vote. Hearing from a number of sources that there was some disagreement on the aforementioned provisions, the voting session was cancelled as the report presented by Deputy Alessandro Molon could be challenged and modifications voted in the very same session. Indeed, a negative vote could put to waste three years of trying to come up with a text that advances the protection of fundamental rights in the Brazilian internet.
As some online initiatives and press coverage slowly reveal what’s holding back Marco Civil, it's certain that old politics and new technologies will return for another round. We'll be keeping an eye on the ground in an effort to ensure that right after elections, Brazil fulfills its promise to deliver on legislation that truly makes fundamental rights the driver for future internet regulations.