The Marco Civil da Internet was appointed as a world reference for the legislation that should deal with the world wide web, during the NetWorld – Global Multistakeholder Meeting on the Future of Internet Governance, which brought together governments, companies, experts and activists in discussions about the future of the Internet.
The principles of the law – especially the guarantee of net neutrality, freedom of expression and the privacy of users – were established to maintain the open character of the internet.
Network neutrality provides that the traffic of any data must be done with the same quality and speed, without discrimination, be it data, videos, etc. If this neutrality were not guaranteed, the internet could work like cable TV: citizens would pay a certain amount to access social networks and another to access networks and videos, for example.
Another principle is the guarantee of freedom of expression. Today, social networks, such as Facebook and Youtube, can take down photos or videos that use images of works protected by copyright or that contravene company rules. For example, photos of members of the Marcha das Sluts with their breasts on display or videos showing parts of TV news broadcasts from the broadcasters have already been removed from the air without the creators of these contents giving an opinion on the restriction on broadcasting. With the Marco Civil da Internet, these companies are no longer responsible for the content generated by third parties and will not be able to remove them from the air without a court order, except in cases of nudity or sexual acts of a private nature.
According to Article 19 of the legislation, “in order to ensure freedom of expression and prevent censorship, the internet application provider can only be held civilly liable for damages resulting from content generated by third parties if, after a specific court order, not take steps to, within the scope and technical limits of its service and within the specified period, make the content identified as infringing unavailable, except for the legal provisions to the contrary”.
The framework also guarantees the privacy of internet users, by establishing that personal information and access records can only be sold if the user expressly authorizes the commercial operation. Currently, the data is used by large companies to obtain more advertising revenue, as they have access to details about Internet users' preferences and options and end up selling targeted products.
In addition to the rights considered principles of the internet in Brazil, 13 others were established by the “Internet Constitution”, as the rule came to be called. The inviolability of intimacy and private life and compensation in case of violation; the non-suspension of the internet connection, except for debit directly resulting from its use; maintenance of the contracted quality of the internet connection are some of the users' rights.
Internet users must, according to the law, have clear and complete information about the contracts for the provision of services and the collection, use, storage, treatment and protection of personal data, as well as having guaranteed accessibility, taking into account the physical and motor, perceptual, sensory, intellectual and mental effects of the user.
Full text of Marco Civil
Presidency of the Republic
Sub-office for Legal Affairs
Validity Establishes principles, guarantees, rights and duties for the use of the Internet in Brazil.
THE PRESIDENT OF THE REPUBLIC I make it known that the National Congress decrees and I sanction the following Law:
Art. 1The This Law establishes principles, guarantees, rights and duties for the use of the internet in Brazil and determines the guidelines for action by the Union, States, Federal District and Municipalities in relation to the matter.
Art. twoThe The discipline of internet use in Brazil is based on respect for freedom of expression, as well as:
I – recognition of the global scale of the network;
II – human rights, personality development and the exercise of citizenship in digital media;
III – plurality and diversity;
IV – openness and collaboration;
V – free enterprise, free competition and consumer protection; and
VI – the social purpose of the network.
Art. 3The The discipline of internet use in Brazil has the following principles:
I – guarantee of freedom of expression, communication and expression of thought, under the terms of the Federal Constitution;
II – privacy protection;
III – protection of personal data, in accordance with the law;
IV – preservation and guarantee of net neutrality;
V – preservation of the stability, security and functionality of the network, through technical measures compatible with international standards and by encouraging the use of good practices;
VI – accountability of agents according to their activities, under the terms of the law;
VII – preservation of the participatory nature of the network;
VIII – freedom of business models promoted on the internet, provided they do not conflict with the other principles established in this Law.
Single paragraph. The principles expressed in this Law do not exclude others provided for in the national legal system related to the matter or in international treaties to which the Federative Republic of Brazil is a party.
Art. 4The The discipline of internet use in Brazil aims to promote:
I – the right of everyone to access the internet;
II – access to information, knowledge and participation in cultural life and in the conduct of public affairs;
III – innovation and promotion of the wide diffusion of new technologies and models of use and access; and
IV – adherence to open technological standards that allow communication, accessibility and interoperability between applications and databases.
Art. 5The For the purposes of this Law, it is considered:
I – internet: the system consisting of a set of logical protocols, structured on a worldwide scale for public and unrestricted use, with the purpose of enabling data communication between terminals through different networks;
II – terminal: the computer or any device that connects to the internet;
III – Internet protocol address (IP address): the code assigned to a network terminal to allow its identification, defined according to international parameters;
IV – autonomous system administrator: the individual or legal entity that manages specific IP address blocks and the respective autonomous routing system, duly registered with the national entity responsible for the registration and distribution of IP addresses geographically referring to the Country;
V – internet connection: enabling a terminal to send and receive data packets over the internet, by assigning or authenticating an IP address;
VI – connection record: the set of information regarding the start and end date and time of an internet connection, its duration and the IP address used by the terminal for sending and receiving data packets;
VII – internet applications: the set of functionalities that can be accessed through a terminal connected to the internet; and
VIII – logs of access to internet applications: the set of information referring to the date and time of use of a given internet application from a given IP address.
Art. 6The In the interpretation of this Law, the nature of the internet, its particular uses and customs and its importance for the promotion of human, economic, social and cultural development will be taken into account, in addition to the foundations, principles and objectives foreseen.
USERS' RIGHTS AND WARRANTIES
Art. 7The Access to the internet is essential for the exercise of citizenship, and the user is guaranteed the following rights:
I – inviolability of intimacy and private life, its protection and compensation for material or moral damage resulting from its violation;
II – inviolability and secrecy of the flow of its communications over the internet, except by court order, in accordance with the law;
III – inviolability and secrecy of your stored private communications, except by court order;
IV – non-suspension of the internet connection, except for debit directly resulting from its use;
V – maintenance of the contracted quality of the internet connection;
VI – clear and complete information contained in the service provision contracts, with details on the protection regime for connection records and internet application access records, as well as on network management practices that may affect their quality;
VII – not providing your personal data to third parties, including connection records and access to internet applications, except with free, express and informed consent or in the cases provided for by law;
VIII – clear and complete information on the collection, use, storage, treatment and protection of your personal data, which may only be used for purposes that:
a) justify their collection;
b) are not prohibited by legislation; and
IX – express consent on the collection, use, storage and processing of personal data, which must occur separately from the other contractual clauses;
X – definitive deletion of the personal data that you have provided to a certain internet application, at your request, at the end of the relationship between the parties, except in the cases of mandatory record keeping provided for in this Law;
XI – publicity and clarity of any policies for the use of internet connection providers and internet applications;
XII – accessibility, considering the physical-motor, perceptual, sensorial, intellectual and mental characteristics of the user, under the terms of the law; and
XIII – application of consumer protection and defense rules in consumer relations carried out on the internet.
Art. 8The The guarantee of the right to privacy and freedom of expression in communications is a condition for the full exercise of the right to access the internet.
Single paragraph. Contract clauses that violate the provisions of caput, such as those that:
I – imply an offense to the inviolability and secrecy of private communications over the internet; or
II – in an adhesion contract, do not offer the contracting party the adoption of the Brazilian forum for the solution of disputes arising from services provided in Brazil as an alternative to the contracting party.
PROVISION OF INTERNET CONNECTION AND APPLICATIONS
Art. 9The The person responsible for the transmission, switching or routing has the duty to treat any data packets in an isonomic way, without distinction by content, origin and destination, service, terminal or application.
§ 1The The discrimination or degradation of traffic will be regulated under the terms of the exclusive attributions of the President of the Republic provided for in item IV of art. 84 of the Federal Constitution, for the faithful execution of this Law, after hearing the Internet Management Committee and the National Telecommunications Agency, and may only arise from:
I – technical requirements essential for the adequate provision of services and applications; and
II – prioritization of emergency services.
§ twoThe In the event of discrimination or degradation of traffic provided for in § 1The, the person in charge mentioned in the caput he must:
I – refrain from causing harm to users, pursuant to art. 927 of Law no.The 10,406, of January 10, 2002 – Civil Code;
II – act with proportionality, transparency and isonomy;
III – previously inform users in a transparent, clear and sufficiently descriptive manner about the adopted traffic management and mitigation practices, including those related to network security; and
IV – offer services under non-discriminatory commercial conditions and refrain from engaging in anti-competitive conduct.
§ 3The In the provision of an internet connection, whether onerous or free, as well as in the transmission, switching or routing, blocking, monitoring, filtering or analyzing the content of data packets is prohibited, in compliance with the provisions of this article.
From Protection to Records, Personal Data and Private Communications
Art. 10. The custody and availability of connection records and access to internet applications dealt with in this Law, as well as personal data and the content of private communications, must attend to the preservation of intimacy, private life, honor and image of the parties directly or indirectly involved.
§ 1The The provider responsible for the custody will only be obliged to make available the records mentioned in the caput, autonomously or associated with personal data or other information that may contribute to the identification of the user or the terminal, by means of a court order, pursuant to the provisions of Section IV of this Chapter, in compliance with the provisions of art. 7The.
§ twoThe The content of private communications may only be made available by court order, in the cases and in the manner established by law, in compliance with the provisions of items II and III of art. 7The.
§ 3The The provisions in caput does not prevent access to registration data that inform personal qualifications, affiliation and address, in accordance with the law, by administrative authorities that have legal competence for their request.
§ 4The The security and confidentiality measures and procedures must be clearly informed by the person responsible for the provision of services and meet the standards defined in the regulation, respecting their right to confidentiality regarding business secrets.
Art. 11. In any operation of collection, storage, storage and treatment of records, personal data or communications by internet connection providers and applications in which at least one of these acts occurs in national territory, Brazilian legislation must be compulsorily respected. and the rights to privacy, protection of personal data and confidentiality of private communications and records.
§ 1The The provisions in caput applies to data collected in the national territory and to the content of communications, provided that at least one of the terminals is located in Brazil.
§ twoThe The provisions in caput it applies even if the activities are carried out by a legal entity headquartered abroad, provided that it offers a service to the Brazilian public or at least one member of the same economic group has an establishment in Brazil.
§ 3The Internet connection and application providers must provide, in accordance with the regulations, information that allows verification of compliance with Brazilian legislation regarding the collection, storage, storage or processing of data, as well as respect for privacy. and the secrecy of communications.
§ 4The Decree will regulate the procedure for investigating violations of the provisions of this article.
Art. 12. Without prejudice to other civil, criminal or administrative sanctions, violations of the rules provided for in arts. 10 and 11 are subject, as the case may be, to the following sanctions, applied individually or cumulatively:
I – warning, indicating a deadline for the adoption of corrective measures;
II – fine of up to 10% (ten percent) of the revenue of the economic group in Brazil in its last fiscal year, excluding taxes, considering the economic condition of the violator and the principle of proportionality between the seriousness of the breach and the intensity of the sanction;
III – temporary suspension of activities involving the acts provided for in art. 11; or
IV – prohibition of the exercise of activities that involve the acts provided for in art. 11.
Single paragraph. In the case of a foreign company, it is jointly and severally liable for the payment of the fine referred to in the caput its subsidiary, branch, office or establishment located in the country.
Connection Record Guard
Art. 13. In the provision of internet connection, the respective autonomous system administrator is responsible for keeping the connection records, confidentially, in a controlled and secure environment, for a period of 1 (one) year, pursuant to the regulation.
§ 1The Responsibility for maintaining connection records cannot be transferred to third parties.
§ twoThe The police or administrative authority or the Public Prosecutor's Office may request that connection records be kept for a period longer than that provided for in the caput.
§ 3The In the case of § 2The, the requesting authority will have a period of 60 (sixty) days, counted from the date of the request, to file the request for judicial authorization to access the records provided for in caput.
§ 4The The provider responsible for keeping the records must maintain confidentiality in relation to the request provided for in § 2The, which will lose its effectiveness if the request for judicial authorization is rejected or has not been filed within the period provided for in § 3The.
§ 5The In any case, the availability of the records mentioned in this article to the applicant must be preceded by judicial authorization, as provided in Section IV of this Chapter.
§ 6The In the application of sanctions for non-compliance with the provisions of this article, the nature and severity of the infraction, the resulting damages, any advantage gained by the violator, the aggravating circumstances, the violator's background and recidivism will be considered.
Keeping Records of Access to Internet Applications in Connection Provision
Art. 14. In the provision of connection, whether onerous or free, it is forbidden to keep records of access to internet applications.
Keeping Records of Access to Internet Applications in the Provision of Applications
Art. 15. The internet application provider constituted as a legal entity and that carries out this activity in an organized, professional and economic way must keep the respective records of access to internet applications, under secrecy, in a controlled and security environment, for a period of 6 (six) months, under the terms of the regulation.
§ 1The A court order may oblige, for a certain time, providers of internet applications that are not subject to the provisions of caput to keep records of access to internet applications, as long as they are records related to specific facts in a specific period.
§ twoThe The police or administrative authority or the Public Prosecutor's Office may, in a precautionary way, request any internet application provider that the records of access to internet applications be kept, including for a period longer than that provided for in the caput, subject to the provisions of §§ 3The and 4The of art. 13.
§ 3The In any case, the availability of the records mentioned in this article to the applicant must be preceded by judicial authorization, as provided in Section IV of this Chapter.
§ 4The In the application of sanctions for non-compliance with the provisions of this article, the nature and severity of the infraction, the resulting damages, any advantage gained by the violator, the aggravating circumstances, the violator's background and recidivism will be considered.
Art. 16. In the provision of internet applications, whether for a fee or free of charge, custody is prohibited:
I – access records to other internet applications without the data subject having previously consented, in compliance with the provisions of art. 7The; or
II – personal data that are excessive in relation to the purpose for which consent was given by the holder.
Art. 17. With the exception of the hypotheses provided for in this Law, the option not to keep records of access to internet applications does not imply liability for damages resulting from the use of these services by third parties.
Liability for Damage Resulting from Content Generated by Third Parties
Art. 18. The internet connection provider will not be held liable for damages resulting from content generated by third parties.
Art. 19. In order to ensure freedom of expression and prevent censorship, the internet application provider can only be held civilly liable for damages resulting from content generated by third parties if, after a specific court order, it does not take steps to, within the scope of and within the technical limits of its service and within the period indicated, make the content identified as infringing unavailable, except for the legal provisions to the contrary.
§ 1The The court order dealing with the caput must contain, under penalty of nullity, clear and specific identification of the content identified as infringing, which allows the unequivocal location of the material.
§ twoThe The application of the provisions of this article to infringements of copyright or related rights depends on a specific legal provision, which must respect freedom of expression and other guarantees provided for in art. 5The of the Federal Constitution.
§ 3The Cases that deal with compensation for damages resulting from content made available on the internet related to honor, reputation or personality rights, as well as the unavailability of such content by internet application providers, may be brought before special courts.
§ 4The The judge, including in the procedure provided for in § 3The, may anticipate, in whole or in part, the effects of the protection sought in the initial request, there being unequivocal proof of the fact and considering the interest of the community in making the content available on the internet, provided that the requirements of verisimilitude of the author's claim and well-founded fear are present. irreparable or difficult to repair damage.
Art. 20. Whenever you have contact information for the user directly responsible for the content referred to in art. 19, it will be up to the internet application provider to communicate the reasons and information related to the unavailability of content, with information that allows the adversary and the full defense in court, unless express legal provision or express judicial determination substantiated to the contrary.
Single paragraph. When requested by the user who made the content unavailable, the internet application provider that carries out this activity in an organized, professional and economic manner will replace the content made unavailable due to the motivation or court order that gave rise to the unavailability.
Art. 21. The provider of internet applications that provides content generated by third parties will be held liable for the violation of privacy resulting from the disclosure, without authorization of its participants, of images, videos or other materials containing scenes of nudity or sexual acts of a character when, after receiving notification by the participant or his legal representative, he fails to promote, in a diligent manner, within the scope and technical limits of his service, the unavailability of this content.
Single paragraph. The notification provided for in caput must contain, under penalty of nullity, elements that allow the specific identification of the material identified as violating the participant's privacy and the verification of the legitimacy for the submission of the request.
Judicial Requisition of Records
Art. 22. The interested party may, for the purpose of forming a body of evidence in a civil or criminal judicial proceeding, on an incidental or autonomous basis, request the judge to order the person responsible for the guard to provide connection records or access records to Internet.
Single paragraph. Without prejudice to other legal requirements, the application must contain, under penalty of inadmissibility:
I – well-founded evidence of the occurrence of the illicit act;
II – reasoned justification of the usefulness of the requested records for the purpose of investigation or evidentiary instruction; and
III – period to which the records refer.
Art. 23. It is up to the judge to take the necessary measures to guarantee the confidentiality of the information received and to preserve the privacy, private life, honor and image of the user, being able to determine judicial secrecy, including with regard to requests for record keeping.
THE PERFORMANCE OF THE PUBLIC POWER
Art. 24. The following are guidelines for the performance of the Union, the States, the Federal District and the Municipalities in the development of the internet in Brazil:
I – establishment of multi-stakeholder, transparent, collaborative and democratic governance mechanisms, with the participation of the government, the business sector, civil society and the academic community;
II – promotion of the rationalization of the management, expansion and use of the internet, with the participation of the Internet Management Committee in Brazil;
III – promotion of the rationalization and technological interoperability of electronic government services, between the different Powers and spheres of the Federation, to allow the exchange of information and the celerity of procedures;
IV – promotion of interoperability between different systems and terminals, including between different federative spheres and different sectors of society;
V – preferential adoption of open and free technologies, standards and formats;
VI – publicity and dissemination of public data and information, in an open and structured manner;
VII – network infrastructure optimization and stimulus to the implementation of data storage, management and dissemination centers in the country, promoting technical quality, innovation and dissemination of internet applications, without prejudice to openness, neutrality and participatory nature ;
VIII – development of actions and training programs for the use of the internet;
IX – promotion of culture and citizenship; and
X – provision of public services to the citizen in an integrated, efficient, simplified manner and through multiple access channels, including remote ones.
Art. 25. Internet applications from public authorities must seek:
I – compatibility of e-government services with different terminals, operating systems and applications for access;
II – accessibility to all interested parties, regardless of their physical-motor, perceptive, sensory, intellectual, mental, cultural and social capacities, subject to confidentiality aspects and administrative and legal restrictions;
III – compatibility with both human reading and automated processing of information;
IV – ease of use of electronic government services; and
V – strengthening of social participation in public policies.
Art. 26. Fulfillment of the State's constitutional duty to provide education, at all levels of education, includes training, integrated with other educational practices, for the safe, conscious and responsible use of the internet as a tool for the exercise of citizenship, the promotion of culture and technological development.
Art. 27. Public initiatives to foster digital culture and promote the internet as a social tool should:
I – promote digital inclusion;
II – seek to reduce inequalities, especially between the different regions of the country, in terms of access to information and communication technologies and their use; and
III – encourage the production and circulation of national content.
Art. 28. The State must, periodically, formulate and promote studies, as well as set goals, strategies, plans and schedules, referring to the use and development of the Internet in the Country.
Art. 29. The user will have the option of free choice in the use of a computer program in his terminal to exercise parental control of content understood by him as inappropriate for his minor children, provided that the principles of this Law and the Law no.The 8069, of July 13, 1990 - Child and Adolescent Statute.
Single paragraph. It is up to the public authorities, together with internet connection and application providers and civil society, to promote education and provide information on the use of computer programs provided for in the caput, as well as for the definition of good practices for the digital inclusion of children and adolescents.
Art. 30. The defense of the interests and rights established in this Law may be exercised in court, individually or collectively, in accordance with the law.
Art. 31. Until the entry into force of the specific law provided for in § 2The of art. 19, the liability of the internet application provider for damages resulting from content generated by third parties, in the case of infringement of copyright or related rights, will continue to be governed by the copyright legislation in force on the date of entry into force of this Law. .
Art. 32. This Law enters into force 60 (sixty) days after its official publication.
Brasilia, April 23, 2014; 193The of Independence and 126The of the Republic.
Jose Eduardo Cardozo
Paulo Bernardo Silva
Clelio Campolina Diniz
This text does not replace the one published in the DOU of 24.4.2014