On April 23, 2014, Brazil’s President Dilma Rousseff enacted the country’s long awaited Internet Bill of Rights, locally known as “Marco Civil da Internet”.
First introduced to the legislature in 2011, the bill was finally approved by Congress and submitted to the Senate in late March this year, after long public debate and several failed attempts of having it voted through the Congressional House.
Made a constitutional priority by the Brazilian Government following the revelations from Edward Snowden regarding American espionage, the bill moved unusually quickly through the Senate, within less than a month after being approved in Congress.
Upon the Senate’s approval, President Rousseff strategically held the enactment of the bill during the first day of “NETmundial”, hosted in Sao Paulo - Brazil’s most trenchant city. The event is a global forum on the future of Internet governance and features representatives of 97 countries, including the US, Brazil, Russia, France, Germany, India, and others.
The new law, which establishes rules on net neutrality, privacy, data retention and intermediary liability, amongst other issues, will become effective 60 days after its official publication held on April 24, 2014.
So how does it impact Intermediary Liability?
Despite controversial and passionate views from both enthusiasts and critics, the recently sanctioned law is viewed as a breakthrough for Brazil’s Internet Governance laws, impacting all players on the Internet, intermediaries included, of course.
Up until recently, the Country had not yet enacted a specific law regulating broad intermediary liability, or the Internet itself, for that matter. Instead, interactions over the Internet were governed by the Country’s general existing legislation, minor legislation updates, and overall case law.
The existing legal scenario created some level of uncertainty for intermediaries as to their liability for user-generated content, with different judicial interpretations arising out of the Country’s many courts.
For the last few years, Brazil has been one the leading countries in takedown requests and lawsuits, according to companies like Google and Twitter. In the recent past, several high profile intermediary liability cases also have gained international media attention.
The recently enacted Brazilian Law now provides a clear safe harbor for intermediaries, who will only be held liable for damages arising from user-generated content when failing to comply with a takedown order issued by a reputable Court. The exception will be for cases relating to private ‘sexual content’, when the intermediary could be held secondarily liable for damages, if failing to act upon user notification.
The new law – with its explicit safe harbor - is expected to provide breathing room for intermediaries operating in Brazil, partly reducing not only the amount of litigation exposure, but also the uncertainty towards liability relating to takedown requests made by users.
In order to propagate its efforts regarding Internet governance, the Brazilian Government is expected to soon release an official English version of its “Marco Civil da Internet”.
Until then, you can see the full text of the new law, in English, by clicking here (Unofficial Free Translation).
The author of this blog post, Diego Spinola, is an LLM candidate at Stanford Law School and a qualified Brazilian attorney. He can be reached at dspinola at stanford.edu.