Brazil’s Internet Legal Framework Regulation And Draft Bill For Privacy Law Public Consultation

By Flavia Rebello and Thais Carvalho

[Article reprinted with permission from Baker & McKenzie LegalBytes newsletter, original available here. With updates from the authors below.]

On 28 January 2015, the Brazilian Ministry of Justice launched public consultations involving two key pieces of legislation, namely: the decree that will regulate the Marco Civil da Internet or the Brazilian Civil Rights Framework for the Internet (the “Internet Legal Framework“); and the Draft Bill for the Protection of Personal Data (“Draft Bill“). A 30-day consultation period was conducted in relation to these two laws via online platforms set up by the government.

[Update:] The term for submissions for the public consultation organized by the Ministry of Justice has been extended to 31 March. This public consultation involves both the privacy draft bill and regulation for the internet legal framework. Contributions can be submitted through the following link: http://participacao.mj.gov.br/.

A public consultation organized by Internet Steering Committee (regarding only the internet legal framework) ended on February 20. The contributions have been compiled and are published in the following link: http://marcocivil.cgi.br/contribuicoes/. [end update]

The Internet Legal Framework:

The Internet Legal Framework (Law No. 12,965/2014) was enacted in April 2014. It established a number of basic principles, guarantees, rights and obligations governing the use of the Internet in Brazil. The ongoing public consultation covers net neutrality; privacy; data log records; and other miscellaneous topics. As an example, the Internet Legal Framework provides for certain exceptions where net neutrality will not be made mandatory, i.e., when it is incompatible with essential technical requirements for services and applications; and, where there will be a degradation of traffic, yet data is necessary to prioritize emergency services. This particular portion of the law is subject to public consultation to determine the circumstances and to identify the conditions where these exceptions may apply. The comments and proposals received from the public will be taken into consideration when drafting the rules and guidelines to be used to implement the law.

The Draft Bill for the Protection of Personal Data:

On 28 January 2015, the Brazilian government issued a Preliminary Draft Bill for the Protection of Personal Data (Bill of Law No. 181/2014), which applies to individuals and companies that process personal data through automated means. The key provisions contained in the Draft Bill include the requirement to obtain consent from the data subject to process personal data, subject to limited exceptions (for instance, no consent is needed in cases where data collected was previously made public or if data has been unrestricted); and the prohibition to process sensitive personal data, subject to certain limited exceptions. For instance, a data subject needs to provide separate consent to allow the processing of sensitive data, and must be given the right to revoke the consent at any time. It also expressly forbids the processing of sensitive personal data revealing racial, genetic and sexual information, as well as religious, moral and political convictions. There are also restrictions on transferring personal data to countries that do not provide similar levels of data protection.  In addition, the Draft Bill provides that minors aged 12 to 18 may be permitted to provide consent for processing of their personal data, subject to certain conditions (which consent may be revoked at any time by the parents or legal representatives of the minor). The treatment of personal data of children below 12 years old will, however, require parental authorization.

Deadlines to receive comments and input from the public:

Contributions to the Ministry of Justice consultation (regarding the Internet Legal Framework and the Draft Bill for Protection of Personal Data) can be submitted via this website on or before 28 February 2015. – Extended to 31 March 2015.

Contributions to the Brazilian Internet Steering Committee (referring only to the Internet Legal Framework) can be submitted through this website on or before 20 February 2015. Comment period completed and submissions available on the website.

Flavia Rebello

Flavia Rebello is a partner at Trench, Rossi e Watanabe in Brazil.

Thais Carvalho

Thais Carvalho is an associate at Trench, Rossi e Watanabe in Brazil.