Brazil’s constitution protects free speech, but antiquated local laws often threaten this fundamental right in digital spaces.

The latest statistics from Google’s Transparency Report show that Brazil issues the third most court orders for content removal behind the US and Germany. Recent cases, including the arrest of a Google executive for refusing to take down a video from YouTube, highlight the growing need for reform.

The Marco Civil da Internet, a draft bill that’s been in the works for several years, aims to guarantee greater freedom of expression, net neutrality, and the protection of private user data online in Brazil. I recently spoke with Alessandro Molon, a congressman from Brazil’s centre-left Workers’ Party and the bill’s rapporteur, about what many are calling the first Internet Bill of Rights.

The Marco Civil draft bill will be Brazil’s first Internet Bill of Rights — but its progress has slowed significantly

The idea of a Brazilian regulatory framework for internet civil rights first emerged in 2007 when civil society began urging lawmakers to stop prioritising cybercrime over civil rights online. The Ministry of Justice, NGOs and academics joined forces in 2009 to launch the Marco Civil draft bill initiative as a piece of crowdsourced collaborative legislation. Thousands of people have since participated in public consultations online to help shape the bill’s direction.

In addition to specific provisions around net neutrality and privacy, Marco Civil addresses basic internet access as fundamental for the advancement of freedom of expression and other civil rights. Only 40 per cent of Brazilians use the internet, meaning more than 100 million still lack access in the country.

Bringing everyone to the table is certainly democratic, but it can also be slow. After nearly coming to vote four times in the Chamber of Deputies, Brazil’s lower house, the bill has been pulled from the docket each time for a variety of reasons including lack of quorum, consent and support.

Marco Civil has also been slowed by private companies interested in strengthening copyright laws and those with business models dependent on user data lobbying for amendments. These efforts mirror the corporate influence that nearly pushed SOPA and PIPA into law in the US and that are stalling the EU’s proposed new data protection regulations.

Voting on Marco Civil was most recently postponed in November after two amendments introduced troubling provisions around net neutrality and copyright infringement. Without adequate safe harbour provisions, which protect internet companies from being held liable for their users’ actions, companies often restrict more content than legally required to stay safely within the confines of the law, thus chilling free speech.

The same day the bill was recently derailed, Brazil approved two cybercrime bills.

The new cybercrime laws revise Brazil’s Penal Code, criminalising the use and distribution of security circumvention software in some cases. The controversial Azeredo bill, which Molon says “almost criminalised everything on the internet”, was watered down through legislative changes and presidential vetoes, making it less threatening to freedom of expression than originally intended.

Another blow for Marco Civil came in December when Brazil joined Russia and China in signing on to new regulations at the World Conference on International Telecommunications (WCIT) in Dubai. Opponents of the new regulations worry provisions around spam and security will be used to restrict internet access and freedom of expression online when they come into effect in 2015.

Molon was opposed to the new regulations and says he worked hard to pass Marco Civil before  the Dubai summit so that Brazil would have a clear position at the conference. “I regret that we didn’t have this in Dubai. It shows how urgent passing March Civil will be, giving Brazil a much more pioneering position in internet legislation and regulation in the world.”

Molon suggests that global conversation around Marco Civil is helping the country achieve a leading role in internet governance and free expression even though the bill is not yet law. “Because of the kind of legislation we are discussing on the internet, Brazil is occupying a more important role in the world nowadays. This shows our aspirations, which must be confirmed by turning the bill into law.”

Molon is optimistic Marco Civil will finally come to vote in the Chamber of Deputies before July and be approved into law by the end of 2013. If the bill is to guarantee online freedom of expression,which is its most central aim, then recent amendments around net neutrality and intermediary liability must be revised. Backlash to such revisions are likely to stretch the bill through another year of deliberations if Marco Civil is to become the first Internet Bill of Rights and a positive legislative model for other countries.

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Brazil’s constitution guarantees both freedom of the press and free speech. The government does not impose censorship in the media. However, recent actions taken by the judiciary —  most of them concerning the removal of online content deemed defamatory —  have been extremely controversial.

In September 2012, a judge from the state of Mato Grosso do Sul ordered the arrest of Fabio Coelho, Google’s top executive in Brazil, after videos about a mayoral candidate were uploaded to YouTube. They were considered to be offensive to Alcides Bernal, who was running for office in the state’s capital city. When the posts were not immediately deleted, Brazil’s federal police temporarily detained Coelho.

Fabio Coelho’s case illustrates clearly how rigid the country’s laws are when it comes to offensive material. Still, many people argue that some of the judges’ decisions in these cases have been excessive. “There are gaps in Brazil’s electoral legislation that make this kind of situation possible”, said Google Brazil’s Public Policy Senior Counsel Marcel Leonardi when asked about Coelho’s detention. He hopes that the case will shine a light ‘on the need to adjust Brazil’s law, so that legitimate political outcries from internet users can be differentiated from, say, unlawful propaganda. The internet’s dynamics need to be understood.”

By not removing the videos, Google tried to make a case for the need for more liberal laws regarding free speech in Brazil, says Marcelo Träsel, Digital Journalism Professor at Pontifícia Universidade do Rio Grande do Sul University (PUCRS) in Porto Alegre. To make the internet giant responsible for the content ”is like making builders liable for crimes committed by apartment-buyers, or a bus company for crimes committed by its passengers”, he says. “As long as Google has proper means for filing complaints about content — and it does have them — and takes effective measures to restrict abuses when warned about them, the final responsibility must be laid upon the client that published controversial material”, he adds.

Falha de S Paulo is a blog that was shut down for parodying one of Brazil’s leading newspapers

When Folha de S Paulo, the country’s most influential daily newspaper, was criticised for its coverage of that year’s general elections in a blog called Falha de S Paulo (Folha, meaning “newspaper”, was replaced with falha, meaning “fail”), Folha filed a lawsuit claiming the blog’s logo, content, pictures and text font imitated its graphic design and confused web users. A judge demanded the website be removed and imposed a daily fine on its authors. On 20 February, the ban was upheld. “Censorship is supposed to be prohibited [in Brazil]“, said one of the blog’s creators, Lino Ito Bocchini, in an interview with the website Comunique- Se, “but in reality, free speech is only guaranteed to those who have money”. He later expressed his intention to appeal the decision. The case was raised with Frank la Rue, UN Special Rapporteur on Freedom of Opinion and Expression. In a recent visit to Brazil, he referred to the situation as “terrible”. Marcelo Träsel agrees that financial pressure comes into play in cases like this. “Politicians, business people and other powerful personalities found that they can silence their critics by filing lawsuits. Influential figures who become  the subject of a scandal are in a financial position to “torment” those who criticise them. “These people don’t even need to win in court”, Träsel says. Filing a lawsuit claiming damages could be enough to shut up a whistleblowing blogger, for example. ”I believe that’s the main threat to free speech in Brazil, and I believe that cases like Falha de S Paulo will grow in number.”

The practice of filing lawsuits to remove defamatory content from the internet also disturbs Google’s Marcel Leonardi. “The internet gives you the possibility to immediately respond to anyone, and in many different ways, like posting videos or creating hyperlinks,” he told Index. In situations like the Falha de S Paulo case, the best way of replying to criticism is by having an online presence so that people can “inform and reply to critics in one’s own virtual space,” he said. According to a recent Transparency Report published by Google, Brazil tops the list of countries that regularly removed digital content. In Leonardi’s opinion, Brazil will continue in this vein unless the “culture of lawsuits” is somehow overcome.

In Brazil, the judiciary has the exclusive power to order content to be taken down from a website — no government body has the right to do so. Other public agents, like federal prosecutors, can only file their demands through lawsuits, as regular attorneys must do. Leonardi believes Brazil is caught between liberal countries like the US, which seldom accepts non-copyright related content removal, and less democratic nations where the main problem isn’t content removal but attacks against publishers and direct government censorship over websites and social media.

Experts like PUCRS’s Marcelo Träsel say that adopting laws that differentiate the “virtual world” from traditional media would bring more clarity to judges’ decisions. In 2012, Congress debated two initiatives that pointed in this direction. One of them — a bill that deals with digital crimes, specifying correlated penalties — was voted in by lawmakers in early November.But another draft bill — called Marco Civil da Internet, or the Internet Civil Right Framework, seen as an “Internet Bill of Rights” — was shelved in November. Marco Civil would have guaranteed basic rights for users, content creators and online intermediaries and established that providers are not responsible for user content. It also would have guaranteed net neutrality, a move that angered the telecommunications industry, as it would prevent them from charging different rates for the various kinds of online content.

Deputy Alessandro Molon, who sponsored the bill, says Brazil’s main telecom companies lobbied hard against it, arguing it was contrary to the principles of the free market. “Approving Marco Civil would be a very important step to guarantee freedom of expression in Brazil”, notes Träsel. However, this type of guarantee for civil rights is unlikely to be seen in the country for the foreseeable future, and judges’ decisions are likely to remain as controversial and damaging as ever.

Rafael Spuldar is Index’s regional editor in Brazil. He tweets from @spuldar

This article appears in Fallout: free speech and the economic crisis. Click here for subscription options and more.

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