Recent developments in technology law
Recent studies acknowledge that not only is Brazil the largest smartphone market in Latin America, but also that more than 100 million Brazilians are regular internet users. Within those numbers, 61% have bought something online, which has led to steady growth of around 20% a year for Brazil’s e-commerce market since 2012, according to Forbes magazine.
Brazilians are also passionate social network users, normally within the top five users of almost any social media platform available, and an interesting target for several internet service providers (ISPs).
Such factors have been shaping a unique digital culture and environment in Brazil, economically active and able to provide opportunities for any new entrants. Brazil is slowly developing a vibrant technology start-up scene, with a mix of government-based incentives and investment from venture capital firms.
In order to adjust to such upcoming competition, traditional businesses are eagerly adapting themselves to this digital environment. An active online presence is now a requirement for customer-oriented companies, as well as constant interactivity with clients and technology tools to use their business data as a competitive advantage.
Under such an effervescent scenario, new legal issues constantly appear, and require a deeper level of expertise. Many IP lawyers expanded their expertise to cover technology law in the past, and were very successful in doing so. However, emerging trends in the technology area now require professionals skilled in IP, but with a broader scope of knowledge.
Brazil has recently passed a new internet bill of rights statute, the Marco Civil da Internet, that creates significant issues for technology businesses. For example, Brazilian law is now likely to apply to the services of any internet business as a whole, regardless of any local presence in Brazil or terms of use that refer to different laws for dispute resolution. Using the Marco Civil rules, Brazilian users may successfully seek damages in local courts against overseas providers, and authorities could even be able to block content from or access to foreign-based ISPs.
The Marco Civil also addresses some data protection issues. Several provisions establish that the collection, processing or storage of records, personal data or communications made by any entity that provides services to Brazilian users, will be subject to Brazilian law. This means that local authorities, and courts, may request specific data about a user’s activity, and personal information, from any technology company that provides services to Brazil, regardless of whether this information is stored in a country where such data receives different treatment under local laws.
If the company has offices in Brazil, disobeying court orders to deliver such data would result in direct penalties. In addition, local and foreign ISPs are now required to retain any data history of their users for a minimum period of six months to safeguard possible investigations by the Brazilian authorities.
"This diminishes a trend in the Brazilian courts to hold ISPs liable for any infringing content, transferring all such liability to users."
However, the Marco Civil was not all bad for ISPs. As regards to the liability of service providers, the new law established a different regime, in which ISPs are no longer held liable for any third-party content posted through their services, unless the service provider received a court order to block and/or remove such content and did not comply accordingly.
This diminishes a trend in the Brazilian courts to hold ISPs liable for any infringing content, transferring all such liability to users, and significantly lowers the risk associated with the activities of some ISPs in Brazil. However, in the case of unauthorised pornographic content, this exception does not apply, and content should be removed immediately after a court order.
Moreover, the Marco Civil law was innovative in establishing a set of basic rights for Brazilian users, such as, for example, freedom of speech and net neutrality. And while the law is widely touted as the “declaration of rights for Brazilian citizens to access the internet” it is, in fact, a significant development to the practice of technology law in Brazil, as part of an ongoing development to adapt Brazilian laws to the technological developments in our society.
Consequently, this creates a huge demand for specialised professionals to provide services to our internet and technology industries. Attorneys who understand technology can provide solid legal assistance and engage in complex litigation, if necessary. Therefore, Brazil is still a great place to practise technology law.
Dirceu Pereira de Santa Rosa is an attorney and chair of technology and entertainment law at Licks Attorneys. He can be contacted at: dirceu.rosa@lickslegal.com
