One week into the public consultations, the platform provided by the Ministry of Justice to discuss the “Marco Civil da Internet” the regulatory decree of the Internet and the draft bill (APL) of data protection received a relevant number of contributions. Discussions are already being framed and controversies are starting to come up.

In this 2nd edition of the InternetLab Reports – Public Consultations (click here for the first edition), we will share numbers about this first week of discussion (informed by the Ministry of Justice and updated to February 4th) and summarize the main discussion topics so far.

Numbers and notes about the quality of the contributions

The platforms already have 552 registered users (the registration allows the participation in the two public consultations – register here) and have received 8510 visits to its website. The engagement of users was similar in both issues: the Marco Civil regulatory decree discussion had 147 comments, the data protection debate, 194.

The Southeast region leads the percentage of page views of the website, with 54.32%. Divided by state, 33.97% of visits came from the state of São Paulo, 14.29% of Rio de Janeiro and 6.06% of Minas Gerais. The Federal District follows in third place with 14.06% of the visit-sharing.

Not all users are complying with the guidelines provided by the Ministry of Justice to foster a reliable debate in terms of what can be harnessed in the discussed normative provisions. It is difficult to take every contribution into account, specially sparse or confuse comments, either because users do not focus on debating among themselves or because they are not aware of the scope of a regulatory decree, for example.

Marco Civil regulation: net neutrality and “zero rating” mobile plans divides participation

In the discussions of the regulatory decree of the Marco Civil, net neutrality was the week’s hottest topic. This subject has also caught the attention of international media. This topic has already 13 debate rooms created by users. The second most buzzing topic is named “Other issues and considerations”, which deals with government initiatives on Internet policy and other reminiscent provisions of the Marco Civil, with 12 topics.

The debate over the “zero rating” plans is constantly growing. The question is whether the prohibition of traffic discrimination included on the article 9 of the Marco Civil forbids telecom operators and Internet companies to become commercial partners for offering free applications in data plans for mobile devices. One example is the free use of Facebook and Twitter for customers of Claro when the user data franchise ends. The InternetLab has discussed this topic recently.

In the discussion created by Paulo Rená, academic and activist who has participated in the Marco Civil bill drafting during his work at the Ministry of Justice between 2009 and 2010, the highlight that bursted the debate is a recent decision by the Canada’s Radio Committee, Television and Telecommunications. The Canadian authorities decided that a mobile TV service provider could not charge less for access to content created by its commercial partners. This would represent a net neutrality violation.

The Canadian and Brazilian actors are different, but the controversy is similar: can the mobile operators perform this type of discrimination in favor of one application in spite of its competitors?

On the one hand, participants felt that offering zero rating plans is constitutionally protected by the right of commercial freedom of telecommunication operators. These plans would be promotional packs like any other. Summarizing this argument, the user Felipe Assis Gonçalves said that even if not ideal, such mobile plan could be the only chance for poor people to have “some network access without sacrificing their bank accounts.”

However, many participants see the zero rating plans a net neutrality violation. Paulo Rená defended that “if there was free access to the entire Internet would be no problem.” According to him, one should not confuse “universal internet access” with access to only some applications.

Data Protection Draft Bill: consent of minors and consent for data transfer

In this week participants expressed their concerns on how consent should be given to companies which use and process personal data. Since the Data Protection public consultation allows only comments made directly in each part of the draft, we will highlight the most discussed provisions about the user’s consent. Article 8 is one that deals with the issue, focusing on the consent given by minors:

Art. 8 – A data subject ranging between 12 (twelve) and 18 (eighteen) years of age can give consent for the processing of data, such processing taking into account his peculiar state of person under development, granted the possibility of revocation of such consent, in his best interest, by his parents, guardians or tutors.

Commentary: Danilo Doneda (PhD and Visiting Professor at the Rio de Janeiro State University – UERJ)

This is a proposal that seeks to adjust the bill with the current state of the internet. We have several data that indicates a very large presence of kids and teens of a great range of income among internet users. This is an important finding that may be useful to discuss whether it is appropriate that a Data Protection Law address the issue of consent of minors beyond the traditional legal boundaries, such as the Brazilian Kids and Teens Statue (known as ECA).

The participant Gabriela Martins believes that the minimum age to provide consent for data processing should be 16 years, the age that the Brazilian Civil Code recognizes a “relative capacity” of minors. According to her, a 12 year old child would not be able to consent safely.

The participant Prof. Marcos disagrees. According to him, it is very difficult to keep minors away from the Internet applications. A better option would require an obligation to give notice to kids and teens about risks of personal data collection.

Another controversial issue is the transfer of personal data, i. e., between different organizations and companies. The subject is treated in the Articles 22 and 23:

Art. 22 – In the event of disclosure or transfer of personal data, the assignee shall be subject to the same legal and regulatory obligations of the assignor, with whom he will be jointly and severally liable for any damage caused.

Art. 23 – Data disclosure or transfer of personal data between private legal persons, will depend on data subject’s free, express, specific and informed consent, except for those cases of waiver of consent provided by the present Law.

At this point, many participants expressed that the user should be informed of these transfers, as a way of ensuring consent was given in accordance with Article 23.

Commentary: Danilo Doneda (PhD and Visiting Professor at the Rio de Janeiro State University – UERJ)

There are several types of consent, the one that is given for a personal data collection and others that specifically aims interconnection activities. Interconnection is the data transfer of a database to another, something that happens frequently in the industry and in the public sector. The idea of requiring consent for data interconnection has to do with ensuring that the use of the data match the user’s will, even if the data is processed by a different company or State body.

Authors: Francisco Brito Cruz and Jonas Coelho Marchezan.