Brazil Seeks Input on Internet Regulatory Decree

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By Ed Taylor

Feb. 1 — The Brazilian government recently commenced public consultation on a proposed decree regulating the country's 2014 Internet bill of rights law.

The decree emerged from 1,200 online comments received after the Internet law establishing rights and responsibilities for users and providers took effect in 2014.

It guaranteed net neutrality—meaning network operators must treat all traffic equally and can't charge more for access to certain services—but contained a clause permitting exceptions.

In addition, the legislation requires Internet companies to preserve user connection data such as Internet protocol addresses for six months. Offensive content can only be removed through court orders and Internet companies can't be held legally responsible for material on their websites. Companies can only be prosecuted if they fail to obey a court order to remove content.

Controversial Aspects

These measures, however, have been controversial.

In December 2015, a Brazilian judge ordered the suspension of the popular messaging service WhatsApp to over 100 million Brazilian users under the authority of the Internet legislation which requires the release of information when requested by a court order. WhatsApp hadn't replied to two court orders demanding the release of the messages of a WhatsApp user involved in a drug case.

Under the draft version of the decree, Brazil's telecommunications regulator, Anatel, would be made responsible for handling over the top content which currently isn't regulated.

Another problem is figuring out how to deal with companies without representation in Brazil, as was the case with WhatsApp. The draft decree states that sanctions and penalties can be levied against companies ”even when the activities are conducted by a company headquartered abroad.”

For attorney Patrica Peck Pinheiro, who heads a law firm in her name specializing in digital law, the Internet legislation still doesn't contain “a unified understanding of how to apply penalties,” which results in “differing interpretations” by the courts.

The decree also attempts to provide a stronger definition of net neutrality, permitting exceptions in cases where it is deemed necessary to lower the level of normal services to give priority to emergency services. Internet providers may also discriminate between distinctive services such as streaming for videos and the transmission of e-mails but can't offer selective packages.

“Agreements that give priority to data packages are prohibited,” the decree states.

On another sensitive issue, the preservation of connection data, the decree states that providers must maintain personal data in a format that is easily accessible to the judicial system.

To contact the reporter on this story: Ed Taylor in Rio de Janeiro at correspondents@bna.com

To contact the editor responsible for this story: Jimmy H. Koo at jkoo@bna.com