Statement made at the main plenary of the 7th Internet Governance Forum (Baku, Azerbaijan)
Marco Civil (Civil Framework for the Internet in Brazil): the multistakeholder legislative model is seriously threatened
The Brazilian Congress has recently disappointed civil society organizations by approving at the very same day two cybercrime laws and postponing the voting on the Marco Civil proposal as the three draft bills were set to be voted in November 7th.
We, activists and civil society organizations in Brazil, believe that Marco Civil was conducted as an example of best practices in the digital environment and showed how Brazil was in the vanguard in terms of rights and freedoms on the Internet. Regarding the participatory process of the draft bill discussion and conception as well as the content of the proposal itself, it seemed that this was a point of no return. Unfortunately this project is seriously threatened by the powerful lobby of strong economic groups.
The telecommunication companies following the agenda of the ITU, are fighting hard against net neutrality and content industry press strongly for a mechanism that allows greater control over what is published on the Internet.
This pressure has caused the adoption of two laws of cybercrimes and the paralysis of the Marco Civil again.
Today the Internet in Brazil is less free than yesterday for this reason we call the international community to support our strive for the maintenance of this crucial regulatory framework.
Marco Civil emerged in 2009 resulting from activism of civil society groups who fought against the approval of a cybercrime draft bill in Brazil (PL 84/99), known as Azeredo Bill, which was clearly against human rights. Unfortunately, this was one of the bills approved on November, 7th.
The main goal of Marco Civil was to reverse a legislative agenda that until that moment only sought to amend the Brazilian Criminal Code rather than enhance civil rights and liberties on the Internet. In the year of its release there were more than 800 contributions to the draft bill, including comments, emails and references on websites. By 2010, a two stages process of public consultation was held online (at the website http://culturadigital.br/marcocivil/) and offline, through public hearings, based on the draft that had been prepared considering the contributions from the previous year. The process has received more than two thousand contributions from many actors from the Brazilian society, including NGOS, universities, governmental bodies, individuals. In August 2011, after more than a year paralyzed, the presidency finally sent the draft bill to the Chamber of Deputies. A special committee was installed in order to conduct nine public hearings in different Brazilian regions along this year.
Despite the long and vivid democratic process of debate, accounting with broad social participation, the three attempts to vote the draft bill completely failed. The last attempt happened on November 7th, when, once again, the voting of Marco Civil was postponed and two projects related to cybercrime were approved, in a clear subversion of the idea that rights and freedoms should take precedence over the criminal laws. This only happened because there were two last minute changes that annihilated all the previous debate. The final text of the report, which became public just before the debate in Parliament, presents some serious problems such as:
Article 9th, on net neutrality, states that exceptions to this principle would be ruled by the Executive. Previous version of the text were more specific, referring to Presidential Decree as a proper instrument, to be drafted after the consultation of CGI.br (Brazilian Internet Steering Committee). The current version, broadly referring to “Executive Power” is troublesome. Mainly because the Minister of Communication, Paulo Bernardo, reaffirmed in an interview his conviction that this regulation should be implemented sole by ANATEL, the telecom regulatory agency. If so, besides threatening a multistakeholder approach, a telecom agency will be ruling about Internet Protocol and layers above, subjects that are beyond it’s roles and attributions.
Article 15, which deals with content removal and third-part liability. While the caput of this article establishes a notice and take down mechanism dependent of court order and providing due process, the new addition of paragraph 2º represents a disastrous and incomprehensible exception in regards to copyright. That not only consolidates a practice of private censorship, but also gives a privileged status to copyright infringement when compared to other possible violations, such as racism and pornography, for example. This provision ignores the fact that the cases of third part liability in Brazil already go through judicial process.