In May 2021, after Brazilian President Jair Bolsonaro stated his administration was working on an executive order on Brazil’s most important internet law, Marco Civil da Internet, a draft executive order on Marco Civil was made public in an official government web system. The Bolsonaro administration later closed access to the document. A translation of relevant sections of the draft, as made public then, is provided below.

Unofficial translation of draft executive order (selected provisions), as of May 2021

translated by Artur Pericles Lima Monteiro, InternetLab

Art. 2-A. The policies and terms of use [adopted] by internet service providers and application services providers shall be made public and be written in an clear and objective manner, in accordance with the guidelines, principles and safeguards provided for by this executive order, by [Marco Civil da Internet], by [the Consumer Protection Code] and by [the General Data Protection Act].

Paragraph 1. Internet service providers and application services providers are required to give users prior and explicit notice of the content of their policies and terms of use.

[…]

Art. 2-B. As provided by art. 8, caput, of [Marco Civil da Internet], application services providers and providers of payment services that offer goods or services to the public at large, permanently or on demand, at no cost or upon payment, shall not, absent a court order, remove, cancel or suspend, either wholly or in part, the services and features of the accounts kept by an user in their services.

Sole paragraph. The provision above does not apply to:

I — payment defaulting by the user;

II — accounts created or used with the purpose of assuming or feigning the identity of third parties to mislead the public, except for the right to the use of a social name [alternate names used by individuals identifying as transgender, which are legally recognised] and of pseudonyms, and [except for when] an explicit intent to humour or parody;

III — accounts predominantly managed by a computer program or technology to feign or replace human activities in distributing content through providers.

Art. 2-B. As provided by art. 8, caput, of [Marco Civil da Internet], application services providers shall not, absent a court order, remove, suspend or restrict content generated by users through their services, except:

I — when the content made public by the user infringes on [the act providing for the rights of minors, including child custody, foster homes, and criminal offences against minors];

II — when the circulation or replication [of the content] constitute one or more of the following practices:

a) nudity and explicit or implicit representations of sexual acts

b) practice, endorsement, furtherance, or incitement of a criminal offence which [is subject to prosecution by the prosecution services];

[…]

III — by request by the user, except as required by [data retention mandates established at Marco Civil da Internet];

IV — by request of a third party, when [the content] constitutes a violation of their [right to likeness], privacy, or copyright.

[…]

[Art. 19-A would delegate to a copyright undersecretary the enforcement of infringements by CSPs to content and accounts protected by copyright law. It is not clear what this would be, and the government has previously discussed a memo under which content moderation would infringe user copyright]

[Art. 21-A provides that noncompliance will subject CSPs to penalties set forth by Marco Civil da Internet. Under Marco Civil da Internet the penalties are provided only for noncompliance with data protection and data retention provisions. The penalties include a ban on providing services in Brazil; Marco Civil da Internet limits this penalty to a ban on data processing in Brazil]