Study - An assessment of Marco Civil's intermediary liability framework

ISOC Brasil is pleased to share with its members and the broader Internet community in the country and abroad a study (originally commissioned by the Internet Society) that provides an assessment of the role played by Brazilian Law #12,965 of 2014 (a.k.a. 'The Marco Civi') and its intermediary liability framework for the development of the Internet in the country.

The Brazilian 'Marco Civil' was the first specialized regulation to establish rights and guarantees for Internet users in Brazil. It also outlines a set of prerogatives and obligations for the public and private sectors around the Internet in the country. The law is the result of a long process of maturation, which began in 2007 around the discussions that led to the adoption of the Decalogue of Principles of the Brazilian Internet Steering Committee (CGI.br) and culminated with its enactment ceremony in the context of the NETmundial Meeting in 2014 (considered a turning point in the directions of global Internet governance at the time). Both for its substance and for its comprehensive multistakeholder legislative approach, the Marco Civil remains a reference for sound Internet regulation worldwide.

We currently live in a new context for Internet governance and regulation in Brazil and elsewhere. Intermediary liability regimes adopted in the past have been challenged and new policy and regulatory proposals have been popping up everywhere. To better inform discussions around those issues, the study conducted by Bruna Martins dos Santos between May and August 2020 seeks to identify the practical effects of the introduction of the Marco Civil in the Brazilian digital ecosystem. It deals specifically with the intermediary liability regime currently in force, and compiles (through a set of semi-structured interviews) valuable information regarding the perception and attitudes of relevant stakeholders towards the existing framework.

The author does an excellent job in demarcating the conceptual distinctions between liability "for content and acts of third parties" (the core of the Marco Civil regime) and liability "for a provider's own act" (something that falls under the scope of other existing more general-purpose Laws). By combining conceptual robustness and information gathered from actors directly affected by the Law on a day-to-day basis), the study helps the reader with understanding the overlaps and intersections between those two modalities and also with projecting the negative practical consequences of giving them an indistinct treatment.

The study (which was carefully reviewed by Carlos A. Afonso) is part of the Internet Society's efforts to promote and defend the "Internet Way of Networking". It is of paramount importance that any policy and/or regulatory approach that applies to the mosaic of intermediaries upon which we rely to use services and applications on the Internet be aligned with the overarching goals of ensuring that the network remains open, global, secure and stable for all people everywhere. It is not a question of regulating or not the Internet ecosystem. It is about properly defining - as a higher principle of justice - the rights and duties of each party according to the role and responsibility they each play in such complex ecosystem.

The study can be found here.

Flávio Rech Wagner
President of ISOC Brasil

Diego Rafael Canabarro
Internet Society's Senior Public Policy Manager, Latin America & Caribbean