The Brazilian ‘Internet Bill Of Rights' And Online Infringement Of IP Rights

On April 23, 2014, Brazilian President Dilma Rousseff sanctioned into law (Federal Law no. 12,965/2014) a bill of rights for Internet users, known as the "Marco Civil da Internet", which establishes principles, guarantees, rights and duties related to the use of the Internet in Brazil. The law enters into force in the end of June and is a first-of-its-kind: developed collaboratively after almost three years of virtual debates and public consultations, it adopts the net neutrality and aims to guarantee freedom of expression to the country's Internet users.

The present article analyzes how the Marco Civil will affect the enforcement of intellectual property rights against online infringements. Specifically, it discusses: a) the provisions that impose mandatory user data retention by Internet service providers (ISPs) and Internet application providers; b) the disclosure of stored user data to interested third parties; and c) the liability of ISPs and Internet application providers for third parties content.

HOW IT USED TO BE BEFORE THE MARCO CIVIL

The former Brazilian law did not regulate the collection and treatment of user data nor the liability of ISPs and Internet companies for third parties content. Despite the absence of written norms, some precedents had built the case law.

In this sense, Brazilian courts had affirmed that ISPs should store Internet access logs and application providers should collect and secure user data and application access logs for at least three years, as stated in the recent case of REsp No. 1398985/RJ, decided by the Superior Court of Justice.

Regarding the disclosure of collected user data, courts had understood that the constitutional rights to intimacy and to the secrecy and inviolability of private communications should not include the collected data that leads to the identity of Internet users (as IP addresses). Thus, it had been said that it was not necessary for an aggrieved party to file a court action in order to access such user data (e.g., Habeas Corpus 83.338/DF, decided by the Superior Court of Justice).

About the liability of Internet companies for third parties content, Brazilian courts had stated that application providers (such as social networks, web search engines, Internet forums and video streaming websites) were not obliged to analyze and filter the content published on their platforms by their users. However, these application providers could eventually be held responsible for an illicit content if they fail to...