Internet regulations can benefit from cross-sectoral conversations, says Marina Maria at the Human Rights Council

Marina Maria, a member of the Brazil EroTICs research team, was one of the panellists of the 'Internet rights are human rights' event co-organized by the APC with the Swedish Ministry for Foreign Affairs at the Human Rights Council’s 17th session in Geneva on June 3. Due to time limitations, she was not able to present her paper in full at the event. GenderIT.org is publishing her complete presentation in which she provides interesting insights in recent policy debates on internet regulation in Brazil and how human right framework's was brought back to the debate thanks to the intervention of local activists.

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Good afternoon. It is my great pleasure to be here today. I would like to thank to APC team for the opportunity to share some ideas in this panel with the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue, and with other panellists.


Since 2007, I have worked as a communication and program assistant at the Brazilian secretariat of Sexuality Policy Watch, a global forum created in 2002 and composed of researchers and activists from a wide range of regions of the world which monitor sexual rights in key policy arenas, like the Human Rights Council.


I am here to present to you part of the experience and findings from the Brazilian component of the EROTICS project, short for an exploratory research on sexuality and the internet, coordinated by the APC Women's Networking Support Program.


Three major findings


The EroTICs research was conducted between 2008 and 2010 in five countries – Brazil, India, Lebanon, South Africa and the United States – and it aimed to explore how the adoption of state and other measures to regulate or even control online content is either impeding or facilitating the access and use of the internet by women's rights, gender equality and sexual rights activists. Each country case examined issues that were more relevant at national levels and which resonated with the main research questions. Methodologies and focuses have also varied according to each context.


The global research findings show that, firstly, the internet is a critical tool for women, particularly young women, but also marginalized groups such as Trans people to search and find information of rights and also health. It also demonstrated that the internet was key for groups such as lesbian and queer activists to organize and mobilize for the advancement of their rights. Further, the findings indicate that everywhere, measures being adopted to regulate the internet may negatively affect these possibilities and the right to freedom of expression, information access and privacy.


Human rights, Orkut and the internet use in Brazil


The Brazilian EroTICs study was conducted by a joint team of researchers from Sexuality Policy Watch and the Latin American Center on Sexuality and Human Rights. The research, developed between May 2009 and June 2010, combined two components: a mapping of recent policy debates on internet regulation in Brazil; and an ethnographic study of internet practices. I will share with you basically a synthesis of the finding in relation to internet regulatory debates, which were very intense in the period during which the research took place.


Before examining the research findings, it is important to recall that Brazil experienced a dictatorship between 1964 and 1985. Our democratizing process has as one of its key legacies, a constitution strongly grounded in solid human rights premises, including in relation to gender equality, no discrimination, and freedom of expression and right to privacy. Another important legacy is the gradual consolidation of mechanisms of participation in policy formation in the most diverse areas.


Regarding the internet, in 2009, 67.5 million Brazilians had internet access. In recent years, usage has increased mainly among women, teenagers and children. Among Brazilians, participation in social networking platforms such as Orkut is particularly significant and the usage of Facebook has already started to be expressive. In 2008, roughly 50 percent of Orkut worldwide membership was Brazilian (around 23 million people), according Orkut’s demographic site. Brazil shows a remarkable trend in connectivity.


Criminalization of the internet use


In Brazil, since the mid 1990’s measures regarding internet regulation have been discussed, this included the creation in 1995 of the Brazilian Internet Steering Committee (CGI.br), which is the body responsible for internet governance, in particular the provision of .br domains.


Starting in 1999, however, draft bills aimed at the application of criminal law to regulate the internet have been debated at Congress level. These initiatives were evidently influenced by global debates such as the US Digital Millennium Copyright Act of 1998, the 2001 European Convention on Cybercrime. As in elsewhere, these legislative proposals were triggered by concerns with financial fraud and copyright issues, but also web-based crimes such as child sexual abuse.


The processing of these bills slowly evolved until 2008 when a combined text was partially approved by Senate, which became known as the Azeredo Bill, as it borrowed the name of the Senator responsible for the presentation of this bill. The proposed bill adopted stringent criminal measures of internet control, including the compulsory registering of users and retention of log frames. The Brazilian community of cyber researchers and activists closely followed the congress debates and criticized the proposals being debated and the final outcome.


Bringing human rights framework back to the internet regulation debates


When the law was partially approved, a continued mobilization in opposition to the bill started. In April 2009, the Brazilian Internet Steering Committee issued a Decalogue of Principles grounded on human rights premises for Internet Usage and Governance in Brazil, recommending that internet regulation was to be guided by freedom of expression, respect for privacy, human rights.

With regard to illegal activities, the Decalogue stresses that liability should be attributed exclusively to those who knowingly and willingly performed the breach of conduct and not against those indirectly involved.


Before and after, a series of public debates and social mobilizations occurred in the form of petitions online calling for a presidential veto on the law and a series of public events that were named “Against the Digital AI-5”. This title echoed the struggles during the dictatorship against the censorship then imposed by the Institutional Act number 5 that completely suspended freedom of expression.


Then, in June 2009, in a major event to discuss free software, the then President Lula responded to the calls of activists by saying that a solution would be found to avoid the internet censorship effects to the law. The President’s cabinet requested a juridical alternative to the “Azeredo Bill” to be explored by the Ministry of Justice.


Drafting a new civil law


In response to this request, the Secretary of Legislative Affairs of the Ministry of Justice, in partnership with the Law School at Getulio Vargas Foundation in Rio de Janeiro, recommended that a new civil law draft bill should be proposed, indicating that its content should be subject to a public online consultation. The proposal was made public in October 2009 and the public online consultation was opened. It was run in two phases.


The text which prompted the first round of debates was based on core principles of the Brazilian Constitution and the proposals contained in the CGI.br Decalogue. Roughly nine hundred comments were posted by individuals and organizations in this first phase. Then a draft bill was elaborated by the Ministry of Justice team and made also available for critiques until May 2010.

In this second round, roughly 1,200 people participated in the consultation. Meanwhile, the Civil Framework was being elaborated and the final processing of the Azeredo bill was stalled at Congress. Although the process ended in May 2010, the draft text resulting from the online consultation has not been made public or tabled yet. But the prospect is that it will be presented to Congress in the course of 2011.


The new civil law provision contrasts with the criminal logic informing the Azeredo Bill text, and in many aspects as it can be illustrated by the article 2 of its first chapter:

“The regulation of the internet in Brazil shall be grounded on the recognition of the international nature of the internet; the rights of citizenship into the digital environment; the human rights; the values of plurality, diversity, openness, and collaboration; the freedom of entrepreneurship and the freedom of competition, considering the following principles: I - the guaranteed freedom of speech, communication and expression of thought; II - protection of privacy; III - protection of personal data in accordance to the law; IV - preservation and guarantee of net neutrality; V - preservation of stability, security and functionality of the network, ensuring means of technical measures compatible with international standards and incentives to best practices; VI - preservation of the participatory nature of the internet.”


Value of open consultation and multistakeholder approach


The trajectory briefly described here is related in many ways with the subject of this panel. It illustrates how deeply cyber regulation debates are connected with democratic politics.


The issues involved were complex and controversial and attracted an ample, heterogeneous and contradictory spectrum of actors. But the Brazilian experience indicates that, under specific conditions, advocacy and mobilization can have a positive impact on legal debates concerning the internet.


In the Brazilian case, this meant a radical and positive shift from a public security and criminal law approach, towards a civil law framework grounded on human rights. In addition, this was the first time that in Brazil a piece of legislation was drafted on the basis on an internet open consultation, this being a noteworthy experience of democratic deliberation, in line with current global trends of e-governance practices.


Lastly, the public e-consultation has created a playing level field for democratic deliberation that allowed equal access of participation to all actors interested. In the last phase of the consultation, participants included thousands of activists working in various domains – cyber activists, people engaged in the struggle for communication rights and child protection, researchers and ordinary citizens – but also a number of powerful companies in the music industry, the main Brazilian law enforcement agency and also the Ministries of Finance and Foreign Affairs. The same rules of participation applied to all.


Top barriers to active participation: fragmentation, technical language and a lack of awareness


Despite this very positive trajectory, limitations can also be identified. For instance, the number of people who engaged in the public consultation was much less than the numbers that have signed petitions and participated of public events of protest against the Azeredo Bill. Also the bulk of civil society participation corresponded to groups previously involved with internet regulatory debates.


While this seems to reflect the contemporary fragmentation of political debates, one additional problem identified, in the Brazilian process, was that the sophisticated technical aspects involved in the discussions appear to have made it difficult for other groups to engage more fully. For instance, it is very clear that neither women’s groups engaged with gender equality nor sexual rights activists have been closely involved with these discussions.


In order to explore further why feminist and LGBT communities were not interested in the intense discussions that evolved in Brazil around internet regulation, the study has performed a small survey with sectors of these groups (62 respondents). Its results indicate that although these communities intensively use the internet for accessing information and learning about rights, the large majority was entirely unaware of the intense debates and policy processes that have evolved in Brazil around internet regulation between 2009-2010.


This, in our view, is one main caveat, or a grave symptom of a democratic deficit. If things had been different, the gender equality and sexual rights communities would have certainly benefited from the conversations that evolved around the internet regulation, in particularly in respect to the problematic meaning of criminal regulation of social practices, but also in relation to the key relevance of right to privacy in contemporary societies.


It should be noted that these communities, like many other sectors of Brazilian society, are not yet fully aware of and able to fully claim their rights to privacy and confidentiality. On the other hand, Brazilian democracy and the internet regulatory debate itself would have greatly benefited from a more permanent and cross-cutting conversation between lawmakers, cyber activists, people engaged in communication rights, gender equality and sexual rights communities and those engaged in child protection.


Creating spaces for multistakeholder and inter-sectoral dialogues


Considering the Brazilian case, I would also like to highlight the importance for the UN in creating more local, national or regional spaces for the debate on internet regulation, and to build within that mechanisms for increasing equal dialogue and participation between actors from different fields such as gender equality, sexual rights and internet rights, not only those who are already involved in the debate on internet governance.


In the future, the creation of spaces and processes to enable these conversations may contribute to the construction and legitimizing of more balanced perspectives on rights approach to freedom of expression, privacy and protection against violence.


Thank you.