Last week, Law 12.965/2014, widely known as the Internet Legal Framework, came into effect. The long-awaited regulation of the law, however, has yet to be published, but it is expected that it will be drafted following public hearings in much the same way as took place with the text of the mentioned law.
Due to the lack of regulation and parameters for interpretation, there still remain a number of doubts concerning the practical application of this Law, including the very self-applicability of its rules.
One of the rules for which the self-applicability has been brought into question is that which obliges application and connection providers to store users' access and connection logs for a period of 6 months and one year respectively. Law 12.965/2014 establishes that the forthcoming regulation will address the means of security necessary to store this data. However, the prevailing understanding, up until now, has been that these logs, which can serve as evidence in legal actions, may be requested from the providers once the law moves into effect. It should be noted that the consequences of a provider's unjustified refusal to present these logs are varied, in addition to the applicable sanctions. Amongst the main consequences are: (i) the possibility of a search and seizure of these logs; (ii) characterization of the disobedience practiced by the provider that did not provide the logs as a crime; and (iii) the application of a daily fine for non-compliance with the court order.
In relation to the providers' civil responsibilities, Law 12.965/2014 includes an alteration in relation to the provider's obligation to remove the content of a third party that is considered to be inappropriate. Previously, the provider would receive a request concerning the supposedly inappropriate content and would then analyze it. Then, based upon its personal understanding, it would decide whether to remove the material from the virtual space or not. If the content were not removed, the party that had felt violated could file an action against the author of the content as well as jointly against the provider. Now the provider's responsibility is much clearer, since the mere request does not justify the removal of the content by the provider, with it being the responsibility of the Judicial Department to analyze the content in question and decide upon whether it should be removed or not. An exception here would be those cases in which the subject matter is nudity and/or sexual acts, since in such cases the laws demands removal of the material.
Law 12.965/2014 does not change things greatly in terms of the previous practice required of the Courts, but it does guarantee greater security for the providers, since it establishes that they will not be held responsible for any damages caused by content created by a third party. Furthermore, it requires that the providers act together with the Judicial Department to maintain the logs and the availability of such, whenever required, as part of judicial proceedings.
More information on Law 12.965/2014 can be found in our Alert that was distributed on 04/28/2014: click here.
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.