Practical problems with the new Brazilian internet law (Marco Civil da Internet) - 1

I'm starting a series on Brazilian new Internet Law. 

Please also read: 

Mandatory changes to Internet User Agreements in Brazil

I hope the image ilustrating the post helps explaining what this law really is about: censorhip (and taxes, but we will get there later).

I will start with some conversations I had just after the law came into force. A longer and more detailed article will follow. 









CONVERSATION 1.


Hi Adler - 

Hi hope this finds you well.  I'd like to call an old favor. 

As you may remember, I work for an American National Entity that is very concerned with Internet privacy and internet communications. We have a website available to Brazilians.

We are trying to get a grasp of how the new Marco Civil will impact our business and what changes we need to make (if any). I'm not sure if this falls within your area of expertise. If not, could you recommend someone that we could speak with?

Nick F.

---------

Nick,

You know you can always count on me.

I'm studying the new law right now. I'm focusing on its conflict of law provisions (mandatory application of Brazilian law in some cases) and in its tax provisions. 

We can talk about that if you want. I will also publish a blog post on the next days. 

Regards, 

Adler

---------

Adler,

+ our legal counsell operative, Matt.

Thanks for getting back to me. 

Although we are interested in all aspects of the law (including tax provisions), what we are most concerned about right now (correct me if I'm wrong, Matt) is how this law impacts the collection, use, storage, and process of personal data for which the law seems to state a website needs a users consent. 

Depending on the interpretation of this text, it could make it very difficult for websites to operate in Brazil. Is this something you have a grasp on? Maybe the better question is, does anybody in Brazil have a grasp on the meaning of this? 

FYI - We still do not have a Brazilian entity, but it is something we are considering in the near future. 

Thanks again,

N.F.

-------------------------

Nick,

To be honest, I'm not quite sure. The law is terribly drafted. 

Article 7 institutes heavy limitations on the use of customer's information. 

Article 8 says that the exclusion of Brazilian courts is not allowed in "Internet contracts", but it is not clear if the use of arbitration would circumvent this prohibition. 

Finally, article 11 mandates the use of Brazilian law, basically whenever there is collection of cusomer's information. However, it is not clear if: 

i) arbitration would circumvent this; 

ii) the execution of a separate agreement, specially a commercial one, would be enough to allow for the use of a foreign law;

iii) if this has any practical application, since:

  a) it is not probable that Brazilian will choose local courts to sue foreign-based companies and web sites.  and

  b) Brazilian general conflict of law rules would indicate a different approach, and it is not clear which rule (the general ones or this one) will apply in a determined case

Also, the law mentions that registers of the use of the information by foreign applications must be maintained by local service providers in Brazil. I suppose this is aimed at big Telecom or phonecompanies that sells apps in Brazil, inter alia. 

But I'm not sure how this would translate to mass markets if you take the use of internet via desktops into account. 

I'm open to discuss this matter over the phone, without cost.  In case you feel you need a legal opinion, we can discuss that. 

May I publish this conversation in my blog, without mentioning your name? This would help a lot. 

Regards, 

Adler
-------------------------

Correct

We need to understand what qualifies as a "user" ?  Someone who merely "uses" or site without registering with an account, or someone who registers with our site only (where we can get an "agreement" to some extent)

We need to understand what PI is for such casual users, and for registered users.

We need to understand cookies on users.

But yes.  This law on its face seems difficult if not impossible to comply with.

Matt M.