Threats to online free speech are a civil society defeat, says Internet Bill of Rights sponsor

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.

The word “marco” in Portuguese means framework. “Marco Civil is about the rights of people online, but it should also be seen as a framework for the legislative process,” Molon says. “I think the way it was drafted has shown Brazilian lawmakers that civil society input can create stronger legislation. It’s a medicine to heal the distance between representatives and those they represent, which is a big problem in our democracies today.”

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.

Molon sees Marco Civil as an important step in guaranteeing a free, open, democratic and decentralised internet. He also see its collaborative genesis as a legislative model that should be replicated in countries around the world.

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.

“That was a civil society defeat,” Molon said. “We wanted Marco Civil to be the first Brazilian law about the internet. Unfortunately, it’s easier to decide what should be seen as a crime than to guarantee the rights of citizens, but that has to change.”

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.

Brian Pellot is digital policy adviser at Index

Brazilian Congress and lobbyists kill world first internet Bill of Rights

The Brazilian Congress’ lower house has killed a draft bill that would have pioneered the world’s first “Internet Bill of Rights.” Feted by free-speech activists and negotiated over several years, the bill used a civil rights framework to guarantee basic rights for internet users, content creators and online intermediaries — establishing that providers are not responsible for user content.

Marco Civil da Internet | Cultura Digital | CC: BY-NC-SA

Marco Civil da Internet | Cultura Digital | CC: BY-NC-SA

The bill, known as Marco Civil da Internet, also guaranteed net neutrality — a move that angered the telecommunications industry as it would prevent internet service providers (ISPs) from implementing a two-tier flow of internet traffic. ISPs worldwide are keen to charge differentiated rates for delivering digital content, this would enable the industry to charge either content providers or consumers more for delivering some kinds of internet traffic, such as movies.

A vote on the draft bill scheduled to take place in the Chamber of Deputies on 20 November was postponed. It was the fifth time in the last two months that a vote on Marco Civil was pushed back after legislators failed to agree on the text. House Speaker Marco Maia has now removed Marco Civil from the list of draft bills on Brazilian lawmakers’ agenda — meaning it will not be bought back to the floor.

The main reason for Marco Civil’s failure was a lack of consensus on the issue of net neutrality. Deputy Alessandro Molon, who sponsored the bill, says Brazil’s main telecommunication companies lobbied hard against it, arguing it was contrary to the principles of the free market.

Other elements of the bill also created controversy — copyright holders were angered by the legal protections offered to internet intermediaries who host or transmit content shared or created by third parties (companies like Google and Facebook). The draft bill stated that such third party content should only be deleted after a court order. Detractors say this process should be faster and simpler, and providers should be able to remove content after being merely notified by offended parties — an argument seen by analysts and activists as a risk to free speech.

The companies’ case apparently influenced key members of Congress and made it impossible to reach an agreement on Marco Civil’s final text. Although industry lobbies were successful in watering down key user protections, their legislative surrogates wanted to impose even greater changes on the text.

After Marco Civil’s failure on Tuesday, Molon said it was up to society to put pressure on deputies to push the draft bill to the floor. He was also critical of big companies that had “their interests frustrated” by Marco Civil.

Molon was supported by the countries President Dilma Rousseff and Vice-President Michel Temer — president of PMDB Party, the main ally to Rousseff’s Workers’ Party in Congress. Despite their respective parties having a substantial legislative majority Rousseff’s and Temer’s support of Marco Civil was rendered ineffectual after lawmakers — mainly from PMDB — took issue with key elements.

The failure of Marco Civil was denounced by activists all around the internet. The Pirate Party founder Rick Falkvinge called the episode a “political fiasco” in which Brazil wasted a chance to gain world-wide influence on free speech issues.

“[The Marco Civil obstruction] follows a ridiculous watering-down and dumbing-down of the bill, at the request of obsolete industry lobbies. Having been permanently shelved, this means that Brazil has practically killed its chance of leapfrogging other nations’ economies”, said Falkvinge on his website.

“Marco Civil could be an advance not only for Brazil, but for all countries, on how to discuss law enforcement on the online world — and its consequences”, said André Pase, Digital Communication professor at PUC University in Porto Alegre.

“A legal framework could go beyond regular laws that get easily obsolete in a context of innovation, where fresh, free online services are born all the time.”

Rafael Spuldar is a journalist based in São Paulo