Brazil: Brazil Enacts A Civil Framework For The Internet

Last Updated: 1 August 2014
Article by Alexandre Ditzel Faraco and Caio Henrique Yoshikawa
Most Read Contributor in Brazil, July 2017

On April 23, 2014, Brazilian President Dilma Rousseff enacted Law No. 12.965, which establishes the legal regime for the use of the Internet in Brazil (the Brazilian Internet Civil Framework, hereinafter referred to as the "BICF").

The enactment of the BICF was prompted in part by Brazilian press coverage stating that communications over the Internet by members of the Brazilian Executive, including Brazilian President Dilma Rousseff herself, were accessed by foreign governments (the United States amongst them) or companies within their jurisdictions. The text of the law, perhaps due to its political motivation, is unnecessarily long and in somewhat redundant style repeats general principles of the Brazilian Constitution and other existing laws such as the Brazilian Civil Code and the Brazilian Consumer Protection Code. This article reports on the BICF's main and substantive provisions, many of which are still to be subject to further regulation.

Contractual Issues and Data Protection

The BICF provides that agreements for Internet access must contain clear and full information on protection of registers of connection (information related to the date and hour of start and end of an Internet connection session, its duration and the IP address used by a terminal connected to the Internet for the sending and receiving of data packages), information on access to Internet applications (sites accessed by the terminal) as well as information on Internet management practice affecting quality.

The new law contains two main rules regarding data protection:

i) the need for the express consent of the Internet data owner for the collection, storage, handling, transfer to third parties and use of data by Internet connection and Internet application providers; and

ii) the right of the Internet data owner to require exclusion of personal data supplied to an Internet application or connection provider upon end of the legal relationship among the parties.

The consent of the Internet data owner for the collection, use, storage, handling, transfer and treatment of personal data is to be highlighted and separated from other contractual clauses.

Internet Neutrality

The BICF establishes that the person responsible for the transmission, exchange or routing of Internet communications has the duty to treat equally any data packages, without differentiation by content, origin, destination, service, terminal or application. The law determines that it is illegal for service providers to block, monitor, filter or analyze the content of data packages.

The cases in which Internet traffic discrimination or degradation is admissible will be indicated by Executive Branch decree, being limited to i) indispensable technical intervention for adequate service provision and ii) emergency services priority need. Even in these cases, traffic change should be informed in advance to users and discriminatory commercial conditions and anticompetitive practices are to be avoided.

Data Storage and Protection

Connection registry, Internet application access, private communication content or any other information that may identify the terminal user or the terminal can only be disclosed via court order. The exception to this rule is the access to personal qualification, parent and address information registry data by law enforcement organs such as the police and public prosecutors for purposes of money laundering prevention.

The Executive Branch shall enact rules as respects data protection and confidentiality procedure.

The BICF also sets forth rules for the keeping of connection and Internet application access registry records, mandatory for the time period of one year in the case of connection registry records and six months for the latter. Such information must be stored confidentially in a secure and controlled environment. Connection registry record storage responsibility cannot be transferred to third parties. The terms in this paragraph may be extended at the request of police or administrative authorities, as well as of the public prosecutor. In which case, the officer requesting the extension should file a formal request in court asking for access to the information kept. In case of registers of connection, the formal request to court is to be presented within 60 days.

The BICF prohibits Internet application access registry storage by connection providers, as well as the keeping of access records of Internet applications by other Internet applications (this can, however, be waived by the data owner).

In addition to applicable civil and criminal liability, the BICF sets forth as penalties: (i) warning with a deadline for the adoption of remediation measures; (ii) fine of up to 10% of the gross sales invoiced in Brazil in the last fiscal year of the economic group liable for the breach, which fine may vary according to the economic condition of the offender and the seriousness of the breach; and (iii) temporary suspension or the forbidding of specified activities. As respects non-Brazilian companies, any local branch or office is joint and severally liable for any fine imposed.

Breach of data protection, secrecy and privacy investigation procedure shall be regulated by the Executive Branch. The BICF does not indicate what entity is to supervise Internet activities or apply the above-mentioned penalties. This is a major gap to the new regulation.

The above provisions shall apply whenever any of the following acts occur within the Brazilian territory: the collection, storage, guarding or handling of registries, personal data or communication by connection providers or Internet applications. Brazilian law is also applicable whenever one of the terminals involved is located in Brazil.

Liability for Damages Due to Content Produced by Third Parties

According to the BICF, the connection services provider is not liable for damages arising out of content produced by third parties. As respects the Internet application provider, liability may exist if it fails to comply with a court order determining any content regarded as unlawful to be rendered unavailable. This court order shall contain clear and specific identification of the unlawful content, in such a manner as to allow it to be found. The party that supplied the content should, whenever possible, be advised by the Internet application provider of the reasons leading to unavailability of the content, with information sufficient to enable it to present an effective defense in court.

More stringent rules apply to Internet application provider in the case of images, videos or any other materials depicting scenes of nudity or sexual acts of private character. In this case, the application provider should eliminate access to the content as soon as it is notified by any person appearing in the material, or by such person´s legal representative, being otherwise liable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.