Internet service providers (ISPs) are the conduits of free expression on the Internet. However, many international and national law and policy proposals, including trade agreements like the Trans-Pacific Partnership agreement (TPP) and others, attempt to make Internet intermediaries the sole arbiter and enforcer of the law instead of courts and judges. ISPs should not be Internet cops. Not only are they not equipped to make such decisions, proposals to make them liable for Internet content end up promoting law enforcement methods that purposefully skirt due process rights.
Private ISP enforcement of copyright also poses a serious threat to free speech on the Internet, because it makes offering open platforms for user-generated content economically untenable. On an ad-supported site, for example, the costs of reviewing each post will generally exceed the pennies of revenue one might get from ads. Even obvious fair uses could become too risky to host, leading to a cautious, bland, and stagnant Internet. This week, Brazil has become poised to enact national regulations that suffer from these problems in the form of new language abruptly inserted into the pending Brazilian Internet Bill of Rights (“Marco Civil”). And while the Internet Bill’s protections for ISPs are at risk of being derailed, two cybercrime bills were approved by the House and are already awaiting the President’s signature.
Marco Civil Falls Short of its Initial Promises to Protect Users
Brazil is now in the midst of rolling out an Internet bill of rights, called Marco Civil da Internet, which was intended to afford strong protections for freedom of online expression and Internet intermediaries. Unfortunately, last-minute changes have made it increasingly clear that it is falling short of its original promise, leaving users and Internet service providers in an ocean of legal uncertainty.
A concerning last-minute change has chipped away at the Bill’s safe harbor provisions regarding copyright infringement. Article 15 of Marco Civil originally provided that ISPs are not responsible for infringing content by Third Parties unless they disobey a specific judicial order to take down said content. However, following a visit by the Minister of Culture to the legislator serving as rapporteur of Marco Civil, the rapporteur introduced a new paragraph into Article 15, saying that the article would not apply in cases of “copyright and neighborhood rights”1.
Brazilian civil society has been pushing for this Bill since 2009, and activists say that a possible effect of this change could be that a judicial take down order would no longer be necessary for the removal of allegedly infringing copyrighted content. If this is the case, copyright owners could take intermediaries to court for their users’ allegedly infringing content, and force ISPs to take their own measures to police users themselves. The impact of this new exclusionary paragraph may be even worse depending on how the language of the articles surrounding Article 15 ends up being written. It could mean that all legal certainty surrounding safe harbors for ISPs and the judicial copyright notice and take down process will be lost.
As expected, this change is an unenlightened consequence of the content industry lobby. Guilherme Varella, lawyer for the Brazilian Institute for Consumer Defense [IDEC], commented on the changes in this recent law article. He stated that this is the result of a clumsy intervention by the Ministry of Culture following constant pressure by the entertainment industry lobby, especially the Brazilian Association of Reprographic Rights (ABDR), the Brazilian Association of Phonographic Producers (ABPD) and the Motion Picture Association of America (MPAA). Varella reports that the entertainment lobby has been camped outside the Ministry and the Congress for the past few weeks, pressuring the vote on the Bill to be postponed until they get what they want.
This is an unacceptable and careless move by the Brazilian government that does not take into consideration the significant chilling effects this would have on Brazilians’ free expression, due process rights, and right to innovate freely. We urge that this new second paragraph be entirely deleted from Marco Civil. By inserting this language, the government is dismissing the years of participatory process and civil society consultations that occurred throughout the drafting of the Bill. Brazil is losing the opportunity to lead by example.
In regard to the previous official draft of Marco Civil, EFF, in a letter to the Brazilian Congress, congratulated the government:
“The adoption of this draft would be a significant victory for the protection of Brazilians' civil liberties online in almost all respects. With the exception of article 11,2 the provisions of the draft Marco Civil are all comparably protective of free expression and user privacy and autonomy to current law in the United States, and in several cases the Marco Civil draft is even more protective of these values. As civil libertarians, we appreciate the numerous ways in which this proposal protects Internet users.”
Due to the new language in Article 15, the Bill now falls far short of its initial objective of protecting Brazilians’ online civil liberties. EFF has worked in the US courts to defend the broad protections for intermediaries under US law because we know that when intermediaries face significant legal uncertainty, they will often react in ways to avoid controversy. What that unfortunately means is that the users are always the ones who suffer most in these situations. If the new language of Article 15 prevails, Marco Civil will fall short in regard to one of its main reasons for existence. From the perspective of Brazilian civil society, article 15’s second paragraph should be deleted from Marco Civil.
Two New Brazilian Cybercrime Bills
While postponing the vote on Marco Civil, the Brazilian legislature approved two cybercrime bills on November 7th, and they now move towards the executive branch for approval. Marco Civil was initially drafted to offer a balanced, positive approach in regard to these proposals on criminal enforcement and users’ activities in the Internet.
One of the bills passed is the once infamous Azeredo Law, which was considered for over 10 years and was heavily criticized by civil society for limiting user freedom on the Internet and threatening user privacy. The House passed a version of the bill; however, it is much less severe than its original draft because many of its most controversial points were removed. The final draft included criminal provisions on credit card falsification and treason, and created a police infrastructure to combat cyber crimes.
The other bill approved by the House criminalizes unauthorized access to emails and sensitive information online, punishable up to two years in prison. The bill is called the Carolina Dieckmann Law, in reference to an instance when intimate photos of the Brazilian actress were released on the Internet. Both bills now go to President Dilma Rousseff for her signature before they go into effect.
According to Professor Pablo Ortellado, from GPOPAI-USP, these bills now lie in the hands of the executive branch, to make sense of and patch together into a cybercrime framework for Brazil. Professor Ronaldo Lemos, who represents Creative Commons in Brazil, says that that this situation—in which two criminal bills are approved while Marco Civil is stagnated in Congress—has created a "political problem”. In his opinion, the priority should have been to move forward with the Bill of Rights first and then to enact specific criminal legislation next, in order to "build a foundation for the civil use of the web” that promotes and prioritizes innovation and predictability.
- 1. Language of article 15 as of November 7th, 2012: “Art. 15. Aiming to secure freedom of expression and avoid censorship, Internet application providers can only be responsible for the damages caused by content generated by third parties if, after receiving a specific judicial order, they do not take action to, in the context of their services and under the established time frame, make unavailable the infringing content, except otherwise established by law.
- 2. Article 11 of Marco Civil bill as of June 2012 imposes a telecommunications data retention mandate similar to data retention rules in some other countries. We recognize that the mandate contemplated here is somewhat narrower than those proposed or implemented elsewhere—for instance, the limitations on retention in Article 12 provide greater privacy protection than other data retention laws we've examined. EFF remains opposed to mandatory telecommunications data retention and continues to campaign against it in the United States and in conjunction with partner organizations in other countries. We recommend deleting this article in its entirety.