In a document prepared by the Copyright Committees; Dispute Resolution; Software, Technology and Data Protection; and Repression of Violations, forwarded to the government, the ABPI alerts on the risks of the presidential decree proposal to amend Decree 8.771/2016, which regulated Law no. 12.965/2014 (“Marco Civil da Internet”), specifically as to prevent the removal of content or deletion of accounts by application providers, without court order.
In summary, the ABPI manifests itself in the sense that the issue of a Presidential Decree to amend Decree no. 8.771/2016, by creating non-existent obligations, as well as changing rights and obligations established by current law, will characterize an extrapolation of the regulatory power of the President of the Republic, pursuant to articles 5, item II and 84, items IV and VI, of the Federal Constitution. As to the merits, unlike what has been stated recently, article 19, § 1, of the Marco Civil da Internet, does not prohibit the removal, by internet application providers, of content generated by their users without a court order, being only necessary for the creation of the obligation of removal under penalty of liability. Thus, given that freedom of expression does not comprise an absolute right, they are currently authorized to adopt restrictive measures to publications that freely offend third parties, disclose intimate content or understand the so-called “fake news”, in addition to a series of other conducts that may violate its terms, without the need for intervention by the Judiciary on the matter.
For the ABPI, by interfering, without reasonable justification, in the free initiative and freedom to contract Internet application providers and holders of intellectual property rights, the draft Decree violates (i) articles 1, item IV, 5 , item XVIII and 170, item IV, of the Federal Constitution; (ii) articles 2, item V and 3, item VIII, of the Marco Civil da Internet and (iii) articles 2, items I and III, 4, items IV and VII and 421-A, item I, of Law No. 13.874/ 2019 (“Economic Freedom Law”).
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