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Brazil: update on latest media policy developments

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Brazil: update on latest media policy developments

Online freedom of expression: legal framing, lawmaking and court trends

The Brazilian Internet Bill of Rights (Marco Civil da Internet, Law No. 12.965/2014) has established that “application providers” (a definition that includes content providers, such as news portals) are a priori not responsible for third-party content (such as comments posted in “leave your comment” boxes). The law establishes that the providers should only be held responsible if the content was not removed after a court order determined so, which was considered a victory by freedom of expression advocates. Despite this rule, however, recent decisions by lower court judges have concerned preventing criticism against public figures (effectively “gag orders” to journalists) and determining liability to news portals for visitors’ comments.

In a high-profile incident (in Portuguese) journalists from the newspaper Gazeta do Povo became defendants in dozens of lawsuits filed by judges from Paraná(a south Brazilian state), resulting from a series of published articles that criticized the high paychecks received by court members of that state (in Portuguese). Also in Paraná a local judge ordered (in Portuguese) a journalist to withdraw from his blog all contentthat was critical of a police chief involved in Operação Lava Jato (massive ongoing corruption investigation), and prohibited him from publishing articles which "could be interpreted as offensive to the complainant" in the future.

Decisions made by lower court judges already have effect in the real world, but are not definitive and can be reviewed by Brazilian higher courts, which have been more sensitive in the area of freedom of expression. The Brazilian Supreme Court, for instance, has recently ruled that biographers do not need to obtain prior authorization from the concerned person or their family (ADI 4815). Last year, the Right to Reply Act (Law No. 13.188/2015) was approved, with concerns regarding media outlets’ right to defense.

Initiatives to limit freedom of expression and information are not coming only from the Judiciary branch, but also from the Legislative, arising from Brazil’s conservative majority in Congressregarding individual freedoms and social rights. The House of Representatives, for instance, is trying to pass a bill (in Portuguese) that establishes punishments for criticism of politicians, and another (in Portuguese) that forbids video/audio recording without prior authorization. Also, the recently published report (in Portuguese) of the Cybercrime Parliamentary Inquiry Commission recommends the approval of a bill establishing theautomatic withdrawal of repeated content(in cases in which the originals have been withdraw by court order) after mere notification by the interested party. This proposal undermines Marco Civil’s provision, according to which content generated by third parties should only be removed by the platforms by specific court order, as it seeks to introduce a kind of “notice and staydown” rule.

Setting a net neutrality rule and defining how to enforce it

The establishment of a net neutrality rule was the main obstacle to the approval of the Marco Civil due to its implications to the telecom industry. After the NSA espionage scandal revealed by Edward Snowden, the pressure for the adoption of an Internet users’ rights-focused regulation in Brazil grew, and strengthened the support to the law, which was approved in April 2014.

The Marco Civil’s Article 9, which regulates net neutrality, establishes thatequal treatment of data packages is mandatory. It allows just two exceptions in which traffic could be discriminated: the first due to technical requirementsand the second for prioritization of emergency services.

The broad scope of these terms left open a wide room for interpretation, bringing uncertainty to the application of the rule. Therefore, even after the approval of the law, zero-rating initiatives were kept, even though carriers saw inquiries (in Portuguese) and lawsuits (in Portuguese). The argument used by the companies was that commercial agreements would not be under the scope of the Marco Civil’s net neutrality rule, and that together with equal processing of data it was possible to offer different billing models.

In order to clarify how the rule should be understood the Brazilian presidency could publish a regulatory decree, an Executive-issued legal guideline to help enforcing the law’s provisions. Following the participatory and multistakeholder approach present during the Marco Civil’s elaboration process, president Dilma Rousseff launched a public consultation of the decree’s draft and called stakeholders to discuss it online. InternetLab monitored the debates on the platform and produced a final report about the consultation, mapping who participated and with which arguments. The main topics at stake regarding network neutrality had on the one hand civil society, and on the other the telecommunications companies. In short they disagreed on the limitation being set a priori vs. a posteriori, and defended different wording for the exceptions.

After the public consultation and just before being suspended by the Senate as a part of her impeachment process, president Rousseff issued the regulatory decree (Decree No. 8.771/2016), which is now valid. The decree targets directly the argument that zero-rating plans are only matters of business models,as it prohibits commercial agreements that prioritize data packets between application providers and ISPs. It is important to mention that the decree is valid only within the scope of the law, and cannot create new rules; therefore the prohibition regarding commercial agreements would be an interpretation of the general rule of art. 9 MCI. The signed decree also establishes the National Telecommunications Agency (Anatel) as responsible for enforcing the rules, with Brazilian Steering Committee (’ guidance.

Nevertheless it is important to analyze these regulations in light of the delicate political moment Brazil is going through. A new government is in place and acting president Temer has already made significant changes since taking power, merging offices and appointing new ministers. As a decree is a unilateral act by the Executive, it could be subject to revision by the new government - and due to this, the regulation should not be taken for granted. Regardless of any move from the new government, however, the interpretation of the rules in force is still in dispute, and courts, prosecution offices, competition and consumer authorities might have surprising roles.

(Image source)

NOTE: The opinions expressed in this article or in the referred content do not necessarily represent those of WAN-IFRA.


Teemu Henriksson's picture

Teemu Henriksson


2016-07-01 15:52

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