Online freedoms in Brazil endangered by changes to Internet Bill of Rights, says expert

After the vote was postponed four times because of a lack on consensus, the Internet Bill of Rights, a bill that establishes the rights and obligations of Internet users in Brazil, is back on the floor of the Chamber of Deputies Tuesday, Nov. 13. The latest section to draw fire is a paragraph in article 15 of the bill that states that case of copyright infringement do not require court order to be taken down.

The change was criticized by the Brazilian Internet Association. "A new proposed amendment, with the insertion of the second paragraph that limits the user's protection against indiscriminate content removal, will surely matter in censorship cases and, for this reason, is absolutely unconstitutional and an affront on digital freedom," the group said in a statement on its website.

Several organizations in support of the democratization of the media and consumer defense groups sent a letter to Deputy Alessandro Molon, the Bill of Rights rapporteur, who also came out against the amendment to article 15.

The change intensifies the dispute between telecommunication companies, service providers, advocates of broad freedoms online, and now the lobby for authors' rights, explained Sérgio Amadeu da Silveira, digital media researcher, professor at the Federal University of ABC and civil society representative on the Brazilian Internet Steering Committee.

Read the full interview in Portuguese here.

Amadeu spoke with the Knight Center for Journalism in the Americas and demonstrated his concern over online freedoms if the amendments to the Bill of Rights, the product of broad participation across society, are approved.

Knight Center: The Bill of Rights will arrive on the floor of the Chamber with an amendment to article 15 dealing with users' rights, which includes a Notice and Take Down policy for violations of authors' rights. Could this represent a threat to freedom of expression online?

It is a threat whose negative consequences for freedom of opinion, expression and creation online are yet unknown. This change is very dangerous, to start, from the point of view of our judicial system. When I accuse someone of a crime, I have the burden of proof.

When mechanisms like Notice and Take Down are added to the mix, the the burden of proof is flipped. So, I can go to the [service] provider of a political enemy of mine or of an economic competitor and say that a certain post violates authors' rights. If there is a law that says the provider is obligated to act on this notice, it will take the content down regardless if there was ever really a violation. The accused now has to prove their innocence, a complete reversal and unacceptable from a legal point of view.

It creates a structure, an industry of censorship in terms that are extremely complex. There are disputes related to Internet content that requires technical expertise, to know whether a photo has been doctored, for example. The original Bill of Rights tries to establish guaranteed minimums. The problem is that the copyright industry subordinates over civil rights in favor of intellectual property or, better yet, defends business models that are uncompetitive in the digital universe.

The latest report from the Brazilian Internet Steering Committee demonstrated in 2011 that 51 percent of Brazilians download music from the Internet and 33 percent download movies. This is a social practice that involves millions of people and the industry, instead of finding a model that complements this behavior, wants to block it. It's an extreme action that, unfortunately, the current Brazilian government is protecting. Incidentally, the current government is a huge step backwards from the Lula administration, which stood up to this kind of vigilantism online.

KC: What drove the agenda for authors' rights in the Bill of Rights on the even of the vote?

The Bill of Rights does not deal with authors' rights but it seems that the industry lobby succeeded in including this point to force the defense of intellectual property through legislation. Look, the copyright industry has one of its biggest champions in Jack Valenti, president of the Motion Picture Association of America, who sued Sony to try and stop the sale of video cassettes (VCR), arguing that they would wipe out the movie industry. Irony of ironies, a big part of Hollywood's revenue now comes from the sale of video copies, not just movie theaters.

New technologies spark changes in our culture, constructing and consolidating social practices. The copyright industry wants to criminalize these practices and paralyze the advance of technology. Even with a bad broadband connection, 51 percent of Brazilian Internet users download music online, it doesn't make sense to say half of Internet surfers are criminals. It is important to underline that this lobby is not defending authors' rights but the business of intermediaries, which is being replaced by the Internet and, instead of innovating new business models, it wants to pause history, like the Luddites.

KC: The United States already follows a Notice and Take Down policy, arguing that it's a quicker, simpler way to avoid harm to authors' rights while avoiding court cases. How do you evaluate this argument?

This is a false argument. So, does this mean, for example, that a we should arrest a driver who caused an accident before being judged to avoid other accidents? It's absurd. Does it mean that this only applies to copyright cases? That copyright law is above the entire judicial system? This argument works in the U.S. because capital is worth more than life there, not so in Brazil. This legislation puts forth many guarantees that are above economic interests. One of them is the presumption of innocence, the principle that says everyone is innocent until proven guilty. It doesn't make sense to buy the argument of an industry's lobby that forces judges to violate other rights in the name of speed when the case is in its interest.

KC: Do you think providers should be responsible to take down offensive content published by others?

In my opinion, the responsibility to take down content can only come from a court order and the recipient of that order should follow it, whether he's a blogger or a provider. Court orders can be criticized but they should be followed. Article 15, in defense of freedom, only allows the removal of content by court order. But the new paragraph added to this article creates an exemption for authors' rights, attacked freedom of expression. They say the judicial system is slow but there are other rights at stake and this does not legitimize lawlessness and affronts to our constitutional liberties, like the presumption of innocence. Brazil is at the vanguard of defending digital freedom of expression but, unfortunately, it is taking a step backwards on this point because of copyright industry interests. Interests that, in the U.S., have allowed lawsuits to go forward against adolescentes and children.

KC: But even without this legislation, Brazil is one of the country that most often takes down content from the Internet. What explains this culture of blocking information?

There are law firms that position themselves, even without the law, as war machines to attack online content. If the legislation passes as it is today, it could paralyze the Internet in Brazil. For the time being, these law firms deal with big companies like Google. Now, imagine a blog or website receiving take down notices indiscriminately. That is what I would call the privatization of censorship on the Internet. These small content providers don't have the legal or technical structure to understand if a take down notice is legitimate or not. If there is a law that says they should be attacked, the content will be removed. Censorship won't argue about the discomfort caused by criticism but rather the violate of intellectual property. This could become a weapon of political and cultural control based on unfounded accusations.

KC: There are cases where even participation in judicial proceedings is harmful to small, independent content producers online. Should we have a dedicated organization to defend freedom of expression online?

We're arriving at a situation where we need to think about a public defender who deals with freedom of expression because judicial interference [with online content] is mushrooming. I think we are going to need groups like the Electronic Frontier Foundation and demand that State provide free defense services.

KC: Net neutrality is another controversial part of the BIll of Rights. Why?

Because it involves the interests of telecommunication companies. Until this week, telecom operators had not declared that they were against net neutrality, the principle of which says Internet providers should not restrict access to content that passes through their system; that it should be "neutral."

They already dominate the infrastructure and make a lot of money off it. They are a powerful oligarchy that dominates the digital communication around the world. But they don't want to be neutral. Telecom companies think, if Internet users have to use my cables, I should be able to define what content should take priority if they can pay for it. This would leave them the power to filter content. This was rejected in the original Bill of Rights.

The question is that there are some exceptions to this principle and some technical interferences are valid to guarantee the Internet functions well. When is this legitimate? This is what needs to be regulated. That's what the debate is over. Civil society wants the regulation to be made for those who understand the Internet; telecommunications companies want it to be easier to kill net neutrality. There is still hope that the Chamber will take the users' interests into consideration and not the commercial interests at stake.

Note from the editor: This story was originally published by the Knight Center’s blog Journalism in the Americas, the predecessor of LatAm Journalism Review.