MP 1068/2021 – The setback of the Civil Rights Framework for the Internet

In force for 7 years, the Marco Civil da Internet (Law nº 12,695/2014) proves to be an essential instrument to guarantee the legal security necessary for the use of the internet in the country. The rights and duties described in it were discussed for years by our parliamentarians, who had the assistance of several experts on the subject and also with strong popular participation through public hearings and online debate platforms. It is, in fact, one of the first legislative processes that came to apply crowdsourcing, a mechanism that relies on the use of the population's knowledge to produce legislative acts and government actions.

Until it was promulgated, the Law underwent several discussions between the Legislative Houses. Its beginnings took place in 2007, when there was a need to establish a normative instrument that would regulate the sector without causing major repressions to society – until then, the Legislature had faced major conflicts regarding this, such as the discussion of the cybercrime bill. Four years later, in 2011, the Executive Power Bill was presented to the Chamber of Deputies (PL 2126/2011), the urgency of having a rule on the subject was such that the then President Dilma Rousseff signed a message of constitutional urgency for Congress to finalize the consideration of the project in 45 days – which, in fact, only came to fruition 7 months later, on the eve of NETMundial, an event held in São Paulo and who was responsible for developing internet governance principles.

The provisions included in the Law serve as an example of how it is possible to promote positive intervention by the State in an activity essential to society, without harming its full functioning. Topics such as freedom of expression, communication and expression of users' thoughts, the social function of the internet, the protection of personal data, the right to privacy, the preservation and guarantee of network neutrality were incorporated into its text as guiding principles for regulating the sector. However, it also imposed civil liability obligations on users and providers against possible damages caused by the improper use and provision of services.

All of these provisions are under discussion today in Provisional Measure (MP) No. 1068, signed by the President of the Republic on September 6, which aims to change the content of the Marco Civil. Among the main proposed changes is the serious restriction on application providers, such as Facebook, Instagram, Twitter, YouTube, among others, to moderate content and delete their users' accounts and/or posts. The wording proposed by the MP to articles 8º-B and 8º-C of the Marco Civil states that the exclusion, cancellation or suspension, total or partial, of the services and functionalities of the social media user's account or profile, as well as the exclusion, suspension or blocking of the dissemination of user-generated content can only occur with “just cause”, under the terms of the hypotheses listed.

It turns out that, by restricting the list of hypotheses of “just cause”, the MP disregards the situation of disinformation that has been established on the internet through the dissemination of false information with harmful potential, allowing the situation to worsen.

To date, six Direct Unconstitutionality Actions (ADI) have been identified against the MP, all authored by political parties – ADI 6996, ADI 6993, ADI 6992, ADI 6995, ADI 6994 and ADI 6991. In addition to the ADIs, senator Alessandro Vieira (Cidadania/SE) filed, without party affiliation, a Writ of Mandamus (MS 38207) against the proposed changes. All ADIs and the MS are under the rapporteur of Minister Rosa Weber.

We highlight that the actions filed follow the line of argument that the MP violates principles fundamental to the maintenance of the constitutional order, such as the prohibition of regression, freedom of expression, access to information and free enterprise, with the aim of making it difficult for posts containing fake newsor promoting hate speech to be deleted. Another argument supported is that its text contradicts the Marco Civil da Internet, especially with regard to the provisions that reproduce the constitutional principle of protection of free enterprise by interfering in the terms and policies of internet providers.

In this last aspect, the provision of art stands out. 19 of the Marco Civil, which establishes the liability of intermediaries for damages resulting from content generated by users only if they fail to comply with a specific court order that determined the removal of the content. In any case, nothing prevents them from promoting exclusion and moderating content in accordance with their internal policies. The restriction of the concept of “just cause” subverts the guiding logic of the Marco Civil da Internet and worsens scenarios that are, today, complex, in addition to representing losses to the business models of these companies. It is worth remembering that the conditioning imposed by art. 19 prioritizes legal security and freedom of expression for users.