22 de out de 2011, às 18:10h

A experiência do Marco Civil da Internet foi apresentada na ONU!

Compartilhamos abaixo o discurso de Guilherme Almeida do Ministério da Justiça realizado durante a 66ª Assembleia Geral da ONU, em Nova York no painel “Internet Access for All?” (Acesso à Internet para todos?), organizado pelo embaixador da Suécia para Direitos Humanos na ONU

Internet Access for all
Statement on behalf of the Ministry of Justice of Brazil
Oct 21st, 2011
Guilherme Alberto Almeida de Almeida
Secretary of Legislative Affairs
Ministry of Justice of Brazil

I would like to stress the importance of a comprehensive and democratic legal framework for information society issues, which shall be based on human rights’ principles.

In this respect, I will provide some information about a Brazilian bill of law currently under analysis at the Brazilian Congress, which proposes a civil-rights oriented legal framework for internet in Brazil. It has been called “marco civil da internet”.

I will talk both about the process of building it, as well as about the achieved results – which is to say, the content of the proposed bill of law. I think both procedures and content may provide an useful input in further and foreign regulatory initiatives.

With respect to the process, it is worth mentioning that it started from a request from society. Then existing bills of law concerning internet were mostly focused on cybercrimes and were to a great extent invasive to user’s privacy, under the argument that strong surveillance and data retention provisions would be necessary to fight cybercrime (it is worth noticing that Brazil has not yet appoved a comprehensive data protection legislation). Citizens, however, asked to be treated as citizens, not as criminals, during their use of internet.

This request led the Brazilian Ministry of Justice to start a process to build, jointly with all interested parties, a civil rights-oriented framework for internet in Brazil. In this process, we had the close collaboration of Fundação Getulio Vargas’ Center for Technology and Society, an important Brazilian think tank for technology issues.

To promote an open and online discussion, we set up a website at “Cultura Digital”, a Brazilian social network sponsored by Brazilian Ministry of Culture to promote the discussion of digital public policies.

We conducted the drafting in two different phases. In the first one, we presented a white paper in order to contextualize the discussions, which have been arranged in three different axes: one concerning user’s rights, a second regarding service providers’ duties and liabilities, and a third focused on governmental activities which would be necessary to promote the internet. In this first phase, each paragraph of the proposed text was open for non-moderated comments.

Based on the inputs received, we drafted a preliminary version of the bill of law and, once again, submitted it to a public and unmoderated debate, in which every article and paragraph was open for comments and even for the sugestion of new wordings. Once we analysed more than 2000 contributions from different sectors of Brazilian society, we prepared a final draft for discussion within the Brazilian Government, which has been finally approved by President Dilma Rousseff last August and is now under discussion at the Brazilian House of Representatives.

The 25 articles of the bill of law have been structured among the same axes which had been proposed at the first discussion stage.

With regard to the rights and guarantees of internet users:
– the bill recognizes the right to internet acess as essential to the exercise of citizenship. It also stresses that the right to privacy and the right to freedom of expression are conditions to the full exercise of the right to internet access.
– Further rights include the right to the secrecy of communications, the right of non-suspension of one’s internet connection, the right to minimum quality standards and transparency from the internet connection providers, and the right of not having its communications filtered, blocked or monitored.

On the duties and liabilities of Internet connection and application service providers:
– the bill brings network neutrality both as a principle to be observed as well as a general non-discrimination obligation in the traffic of data packets. Exceptions should only be accepted when arising out of technical requirements, necessary to the adequate provision of services;
– In order to protect the freedom of speech, the bill brings safe harbor provisions for internet application service providers with respect to third party-generated content. This means that, except when otherwise determined by law, an application service provider (a blog or website, for instance) may only be held liable for a third party-generated content in case of disrespecting a judicial order on content removal.
– with respect to data retention of internet connection and internet application logs, the bill suggests that it shall be mandatory for internet connection service providers, and optional for internet application service providers. There shall be clear and transparent procedures for its collection and use, and they may only be retained by a limited period. Such data shall be kept in secrecy and may only be provided to third parties in case of user’s consent or upon a court order.

In the field of guidelines for government activities, we find the following directives:
– transparent and democratic governance;
– openness and interoperability of services, in particular with respect to public services, based preferentially on open standards and technologies;
– open governmental data on the internet, to promote full access to information;
– special focus on education – to promote digital literacy -; on infrastructure deployment; on the promotion of culture and citizenship; on the accessibility to the impaired; on the ease of use of public services.

Other than these three main axes, the bill also brings common grounds, principles and objectives for the use and governance of internet in Brazil. This aims to condition future legislation and to inform court decisions with respect to the recognition of internet’s nature and principles in their activities.

Among such grounds, principles and objectives, we note:
– any future regulation shal recognize Internet’s international nature an the importance of preserving its participatory context;
– human rights, plurlity and diversity shall stand as the grounds for any such regulation;
– respect to privacy, protection of personal data, safeguard of freedoom of speech and communication and the preservation of net neutrality and other internet principles shall remain as principles for internet regulation;
– among its goals, the promotion of the right of acessing the internet to all citizens, and the promotion of access to information, knowledge, public participation and innovation.

But Marco Civil is only a step in the democratic regulation of the 21st century information society in Brazil. The deployment of specific public policies and the updating of other legal frameworks are also necessary.

In the field of public policies, there is a Brazilian National Broadband plan in course, with a mix of telecommunication and infrastructure regulation, tax incentives, investments and further policies to promote innovation, public services and national content.

A law on Access to Public information, which has been proposed by Brazilian Government three years ago, is in its final stages of discussion at Brazilian Senate and its approval is expected before the end of the year.

A discussion on the copyright reform is also in course. The debates, which have also been conducted through a participative website, received more than 8.000 contributions. Brazilian government is finishing its analysis to send such bill to the Congress.

A proposed bill on data protection has also been subject to a public debate on the same terms, and is also waiting for its final governmental version to be sent to the Congress.

However, these online discussion methods have not served only to information society-related legislation. Brazilian Civil Procedure Code reform’s 1007 articles have been debated in the same way by the Ministry of Justice – and Brazilian Congress adopted the same methodologies to enhance its social participation instruments and to keep the debate. Brazilian Commercial Code is the next text to be discussed, and the discussion is scheduled to start on next Thursday.

From these different experiences and initiatives, we have learnt that a digital agenda to the 21st century shall not only seek to reduce inequalities, but also seek to promote social participation in public and political issues through technology. We recognize the importance of engaging multiple stakeholders in such new procedures, and we expect Brazil’s case to serve a best practice reference for countries which are seeking new regulatory models.

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