This April 23rd, the Civil Rights Framework for the Internet (MCI), law 12,965/2014, completes 10 years of existence. The legislation placed Brazil at the forefront of debates on Internet regulation in the world, being called by many experts the “Constitution of the Internet”. But 10 years after its validity, the law has presented several application challenges – with disagreements about whether or not an update is necessary.

TELETIME heard some actors who in 2014 had an active participation in the process of construction and approval of the Civil Rights Framework for the Internet, to understand whether the law is still current and where changes could be made. The aim was to understand, in the reading of these actors, how the legislation that brought Brazil to the forefront of debates on digital rights can, or cannot, be applied to current contemporary problems experienced on an Internet dominated by a few global platforms.

Alessandro Molon, federal deputy between 2011 and 2022 and rapporteur of the MCI bill in 2014, in the Chamber of Deputies, highlights that in the last 10 years, Brazil has seen the development of thousands of small and medium-sized Internet providers, and a greater diversity and quality of digital content and services offered to consumers and citizens – such as Pix. “This was only possible thanks to the solid foundations of the Marco Civil, that is, the pillars of the law, especially network neutrality,” he said. Molon is currently executive director of the Open Internet Alliance (AIA).

“Net neutrality came to establish a very important principle that became a reference in the world, following the approval of the Marco Civil da Internet, which was the idea that Internet connection providers, that is, telecommunications operators, do not they can discriminate against packages, they cannot prioritize packages”, adds Bia Barbosa, who in 2014 was part of Coletivo Intervozes.

Barbosa recalls that network neutrality was one of the divergent topics that made it difficult to approve the matter. “At the time, [neutrality] was the topic that generated the greatest disagreement between companies, civil society and researchers at that time, because Brazil was moving towards a model of commercialization of Internet access services that could reach a stage where you would have cheaper packages, in which the user would only access, for example, email and social networks. Other more expensive packages in which you could watch videos”, said the journalist, who is currently part of the organization Direito à Comunicação e Democracia (DiraCom) and is one of the civil society representatives on the Internet Steering Committee in Brazil (CGI.br).

Challenges

Paulo Rená, who at the time was part of the Beta Institute for Internet and Democracy, part of the “Marco Civil Já” front, which defended the approval of the matter in the Brazilian Congress, highlights the pioneering spirit in the process of building the MCI, but also highlights the challenges of its effectiveness even after 10 years. He also points out the possible “culprits” of the situation.

“The Marco Civil has been the target of criticism and attempts to change it, especially with regard to the responsibility of online platforms. But, contrary to common sense, I don’t believe that we are dealing with an evolution of technology or a change in the real world. In my opinion, what was missing was precisely the authorities fulfilling their role”.

“For example, I understand that Anatel was weak in defending network neutrality, and preferred to strengthen telecoms; the Public Ministry was timid, unable to question in court the legality of any of the terms of use of social networks based in Brazil; and the judiciary continues to grapple with legal issues from the Orkut era”, said Rená, who is currently a PhD student in Law at the University of Brasília, a researcher at the Internet and Society Reference Institute (IRIS), and an activist at AqualtuneLab.

Marcelo Bechara, who in 2014 was a member of Anatel’s Board of Directors, today sees that the MCI is obsolete and precisely because of this, it has a series of implementation difficulties.

The lawyer, who is currently director of Institutional Relations at Grupo Globo, understands that law 12,965/2014 played a very important role in its launch, when it signaled the need for legislation with civilizing values ​​and importance for Brazilian society in the Internet world. . The law still maintains some of these values ​​today, but Bechara questions its “sacralization”, which prevents its updates.

“The Marco Civil da Internet is a somewhat sacralized piece. It has become a law that cannot be changed, often romanticized, and a law that, in some of its points, is not applied. You identify there in the Marco Civil on the internet things that still need to be done, to be completed, such as, for example, some administrative sanctions that were never adopted. There were some aspects from the point of view of the development of the Internet, studies, public policies, digital inclusion, which signaled, at the time, the evolution of the Marco Civil”, recalled the current director of Globo.

On the other hand, Bechara also recognizes that the text brought positive aspects to the country, such as network neutrality. “I think the MCI is positive, for example, on the issue of network neutrality, which was the big topic of discussion at the time of the Marco Civil. So, [one must] point out the benefits not only for Internet users, but also for Brazil”, he said.

What needs to change?

A divergent point between the sources heard by TELETIME is about changes. There are those who understand that the Marco Civil da Internet cannot deal with the current challenges brought by the Internet to guarantee users’ rights – and those who understand that the legislation does not need updating.

Flávia Lefèvre, a lawyer specializing in digital and consumer rights, is one of those experts who understand that the MCI does not need changes, but rather to be respected and applied.

“The MCI does not need revision. In fact, the law still needs to be applied effectively, as some rights such as network neutrality and the guarantee of continued provision of the Internet connection service, which is essential, as expressed in art. 7th, have been repeatedly disrespected, as the entities that make up the Network Rights Coalition have denounced, in the administrative process that has been running at the Ministry of Justice, since January 2023, without the competent authorities giving consequence and effectiveness to these rights”, he states. Lefèvre, who in 2014, worked as a lawyer at Proteste, an organization defending consumer rights, also occupying one of the vacancies in the 3rd sector at CGI.br.

She also mentions the part about platform accountability, which is also an aspect that has been forgotten in the analysis of the legal text. She highlights that in the Marco Civil da Internet, there are provisions that already provide for the accountability of agents according to their activities, in accordance with the law, but that everyone only looks at article 19, which is currently under constitutionality analysis by the Federal Supreme Court (STF).

“Despite the clear clarity of the provisions of art. 3rd, the thesis is insisted that the platforms would only respond in the hypothesis of art. 19, which deals with responsibility for content posted by users. In other words, the need to systematically interpret laws has been ignored, failing to apply the responsibility of platforms regarding their content moderation activities, such as boosting, recommending, reducing the reach of content and accounts, which has been very comfortable for these companies and very damaging on a large scale for Brazilian society”, said the lawyer.

But Lefèvre understands that, considering that the MCI is a principled law, it is important for Brazil to move forward in regulating platforms, such as what it is proposing in bill 2,630/2020, especially on topics regarding transparency obligations, providing a necessary dose of governance about the algorithmic practices applied by big techs, the rights of children and adolescents and the use of platforms on public agents.

Another person who believes that the MCI does not need updating after its 10 years of existence is Ronaldo Lemos. In 2014, Lemos was a law professor, and was the first to talk about a “Civil Framework for the Internet”, in an article published in 2007.

“The Civil Rights Framework, 10 years later, still represents the essential balance between the various principles that affect the Internet. The legislative proposals that modify the Marco Civil present inferior solutions to the current text, some with the potential to cause worrying imbalances. This does not prevent other laws on the Internet and technology from being approved. For example, the country is now discussing a law on artificial intelligence. These other laws could very well coexist with the Marco Civil and be inspired by its drafting process”, says the lawyer, who is currently president of the OAB-SP Technology Commission and founder of the Rio de Janeiro Institute of Technology and Society ( ITS Rio).

Lemos also agrees with Lefèvre, as he believes that new legislation for the digital environment is important, as long as it is constructed by Brazilian society, and not as copies of the European model, which is what is being proposed in Brazil. “Brazil needs to stop copying external regulatory models. It’s better to build our own models, like so many other countries are doing, especially developing countries,” he told TELETIME.

Marcelo Bechara, in turn, points out that the MCI does need to be changed, since it has a principled characteristic and the digital world has brought new challenges, requiring new legislation. “Other issues arose, then, that are not resolved by this Civil Framework, which needs to be updated on the issue of responsibility, but which, by far, does not cover platform issues. The platform business model is completely different, because it is not just any application provider”, he said. For Bechara, article 19 of the MCI is unconstitutional.

Alessandro Molon, on the other hand, understands that the Marco Civil remains current, as Brazil’s digital transformation advances. And the great asset for this is the participation of society and an approach based on principles, including fundamental rights and the guarantee of network neutrality, an important element that should guide all debates on legislation in the area of ​​the digital environment.

“This does not mean that it is static or an end in itself. The General Data Protection Law (LGPD) itself, for example, later came into dialogue with the Marco Civil, establishing specific regulations for the protection of personal data. It is natural for there to be incremental advances. As the world changes and new problems arise, laws can be improved by the Legislative Branch itself. The most important thing is that the participatory process that the Marco Civil followed is followed, that is, an open discussion with various actors in society – and, especially, that the principles set out in the law continue to be observed, as they continue to benefit Brazilians and the Internet,” he said.

Impact of platforms on markets

One of the aspects that has given rise to a debate about a possible update of the Marco Civil da Internet is the evolution that “intermediaries” have undergone in the last 10 years, and its impacts on certain markets. The telecommunications and communications sectors, in general, were extremely affected by the way big techs operate, for example.

Marcelo Bechara points out that digital platforms have brought positive and negative impacts to the Brazilian market. “When I say beneficial [aspects], it is clear that you take, for example, platforms from the point of view of the food market, providing opportunities for the supply of food to small restaurants, small businesses, or the application market that created this new category of application drivers that did not previously exist. Or even on social media, where the possibility of public debate, expression of thought, freedom of expression has opened up.”

Among the negative impacts would be the advertising rules, which are not followed by the platforms. “When you look, for example, at digital advertising on platforms, you see scams being applied all the time. So, if at the same time you have an influencer market bringing new products, new brands, you see the same influencer market taking hits”, says Bechara.

Alessandro Molon, in turn, sees that digital platforms have led to the flourishing of several Brazilian markets, one of them being healthcare. “In 2022 alone, online medical consultations were used by 33% of doctors and 26% of nurses across the country, not counting nursing notes, which increased from 52% in 2019 to 85% in 2022. According to Health Tech Report of 2022, since 2016, more than 600 health techs have been founded in Brazil”.

“In the same vein, the education sector and distance learning, which grew 474% in ten years: more than 3 thousand municipalities in Brazil offer distance learning, allowing to take to all regions of the country, including in the interior, training that before they could not be offered.” In this scenario, the former deputy assesses, it is noted that the number of opportunities for several entrepreneurs from different segments to compete in competitive markets has increased.

Bia Barbosa highlights that social media platforms are not neutral intermediaries for this content. As the CGI.br advisor says, there are hundreds of studies showing this, when evaluating the way content circulates. “From the moment the user publishes on a social network, the way this content is distributed – whether it gains traction on the internet or not – largely depends on the algorithmic choices that each company makes for the functioning of its platform”, says Barbosa.

In this way, these platforms directly impact the communication market, especially when they disseminate disinformative content – ​​which would provide a new legal way to contain such practices.

Via: Jornal O Globo