Marco Civil da Internet of 2014

Introduction

The Marco Civil da Internet (Law 12.965/2014) is Brazil’s internet regulatory framework, often described as the Internet Constitution or Internet Bill of Rights. Enacted on April 23, 2014, the Marco Civil establishes principles, guarantees, rights, and duties for internet use in Brazil. It was the result of an innovative multi-stakeholder drafting process, including public online consultations, and has served as a model for internet governance legislation worldwide.

Legislative History

Drafting Process

The Marco Civil originated from Bill 2.126/2011, drafted by the Ministry of Justice with extensive public participation. The Brazilian Internet Steering Committee (CGI.br) played a central role in the drafting, reflecting its multi-stakeholder governance model. The law was approved by the Chamber of Deputies in March 2014 and the Senate in April 2014, and was signed into law by President Dilma Rousseff.

Context

The Marco Civil responded to growing concerns about: (i) net neutrality; (ii) privacy and surveillance (particularly after the Snowden revelations regarding NSA surveillance of Dilma Rousseff’s communications); (iii) intermediary liability; and (iv) the need for legal certainty in the digital environment.

Foundational Principles

Article 2 and 3

Article 2 establishes the foundations of internet use in Brazil: (i) freedom of expression; (ii) human rights and citizenship; (iii) pluralism and diversity; (iv) open and collaborative nature of the internet; (v) network neutrality; and (vi) preservation of internet stability.

Article 3 enumerates the principles of internet governance: (i) multi-stakeholder participation; (ii) cultural diversity; (iii) social participation; (iv) technological innovation; and (v) legal certainty.

Net Neutrality

Article 9

Article 9 mandates network neutrality (neutralidade de rede), requiring that internet connection providers treat all data packets equally, without discrimination by content, origin, destination, or application. The sole exceptions are technical requirements necessary for service quality and emergency services.

Regulation

The Brazilian Internet Steering Committee (CGI.br) and ANATEL regulate net neutrality implementation. ANATEL Resolution 614/2013 established rules for traffic management and transparency.

Privacy and Data Protection

Privacy Rights

Articles 10-12 establish: (i) the inviolability of communications; (ii) protection of connection and access logs; (iii) confidentiality of private communications; and (iv) the right to non-disclosure of personal data.

Data Retention

Internet connection providers must retain connection logs for one year (Article 10). Application providers must retain access logs for six months (Article 13). Data must be kept confidential and disclosed only by court order.

Intermediary Liability

Article 19

Article 19 establishes a notice-and-takedown regime for intermediary liability. Internet application providers are liable for third-party content only if they fail to remove specific content after a court order. This provision limits the liability of platforms compared to the US Section 230 but is more protective than the EU’s strict liability regime.

The constitutionality of Article 19 is currently being reviewed by the STF in ADPF 403 and RE 1.037.396 (Theme 987), with arguments about whether the requirement of prior court order unduly restricts the removal of harmful content.

Article 21

Article 21 establishes strict liability for providers that host or monetize content involving nudity or sexual acts without the depicted person’s consent.

Freedom of Expression

Protection of Expression

The Marco Civil guarantees freedom of expression online and prohibits censorship. Article 19’s requirement for court orders before content removal provides procedural protection for expression.

Right to Information

Users have the right to clear and complete information about data collection, use, and sharing practices (Article 10).

Application Providers’ Duties

Terms of Service

Application providers must include in their terms of service: (i) applicable jurisdiction; (ii) data protection practices; (iii) content moderation policies; and (iv) complaint procedures.

Transparency

Providers must publish transparency reports on government requests for data and content removal.

Enforcement and Penalties

Sanctions

Violations of the Marco Civil may result in: (i) warnings; (ii) fines; (iii) suspension of activities; (iv) prohibition of activities; and (v) trade restrictions.

Judicial Enforcement

Users may seek judicial enforcement of Marco Civil rights through ordinary procedures and constitutional writs.

International Influence

The Marco Civil has influenced internet governance legislation in other countries, including Italy and the European Union’s digital single market regulation. Its multi-stakeholder drafting process and balanced approach to rights and responsibilities have made it a reference model.

Conclusion

The Marco Civil da Internet is a landmark in internet regulation, establishing a framework that balances freedom of expression, privacy, and net neutrality with accountability for illegal content. Its innovative drafting process and principles-based approach have made it a global reference. The STF’s review of Article 19 and the ongoing development of disinformation regulation represent the next frontier in Brazilian internet law.