Overview
The Brazilian regulated television market is divided into two major segments: (1) open broadcasting TV, which is regulated under Law 4,117/962 (Telecommunications Code) and Decree 52,795/1963, and is submitted to the control of the Ministry of Communications and subordinated to the President of the Republic; and (2) pay television service (Pay TV), which is considered to be a telecommunication service by Law 12,485/2011 and is submitted to the National Agency of Telecommunications (Anatel) and the National Agency of Cinema (Ancine), which operate under the authority of the Ministry of Communications and the Ministry of Culture respectively, the authorities responsible for defining public policies.
On the other hand, Web TVs are not under regulatory control yet. This is because, from the standpoint of the Brazilian Telecommunications Law, internet applications, as offered in different forms, are considered value-added services (VAS). VAS is not considered a telecommunications service; however, the provider thereof is classified as user of the telecommunication service providing support thereto, with the rights and obligations inherent in such condition.
In 2015, Anatel and Ancine announced that they were reviewing the regulation so as to encompass certain VAS (ie, VOD and OTT). It means that in the near future, Web TV may be subject to license requirements and/or regulatory obligations.
Among other obligations, Ancine is considering imposing national content quotas on Web TVs, which implies that channel programmers that broadcast mainly movies, series, cartoons, documentaries (the so-called channels of qualified space) will be required to dedicate 30 hours and 30 minutes per week of their prime time programming to airing Brazilian audio-video contents, with no less than half of them being produced by independent Brazilian producers. At present, national content quotas are imposed on Pay
TVs under the terms of Law 12,485/2011.
Another obligation under discussion concerns payment of the Tax on the Development of the Domestic Film Industry (CONDECINE) which is payable to Ancine. All telecommunication companies are currently subject to CONDECINE, but that tax was instituted by Provisional Measure 2,228-1/2001 concerning the promotion of activities related to the development of the audiovisual sector in Brazil.
However, apart from such prospective obligations, it is important to highlight that the different offerings of Web TVs are currently subject to some rules of civil and administrative nature.
The Internet Bill of Rights
The Brazilian law is founded on the principle of inviolability of the right to life, liberty, equality and security, as provided by the Brazilian Federal Constitution in the following terms:
- the expression of thought is free, and anonymity is forbidden;
- the right of reply is ensured, in proportion to the offence, as well as compensation for property or pain and suffering or for damages to image;
- freedom of conscience and of belief is inviolable, the free exercise of religious creeds being ensured and, under the terms of the law, the protection of places of worship and their rites being guaranteed;
- no one shall be deprived of any rights by reason of religious belief or philosophical or political conviction, unless he/she invokes it to exempt themself from a legal obligation required of all and refuses to perform an alternative obligation established by law;
- the expression of intellectual, artistic, scientific, and communications activities is free, regardless of censorship or licence;
- the privacy, private life, honour and image of persons are inviolable, and the right to compensation for property or pain and suffering resulting from their violation is ensured; and
- the secrecy of correspondence and of telegraphic, data and telephone communications is inviolable, except, in the latter case, by court order, in the cases and in the manner prescribed by law for the purposes of criminal investigation or criminal procedural finding of facts.
Based on all of these constitutional rights, Law 12,965, known as Marco Civil da Internet or the Internet Bill of Rights,1 was enacted in 2014 in order to establish principles, guarantees, rights and obligations concerning
the use of the internet in Brazil, including by internet applications providers,2 and also to provide guidelines for the Public Administration on the matter.
One of the principles governing the use and provision of services is the freedom of business models promoted on the internet, provided they do not conflict with other provisions established in the Law.
In addition to compliance with all constitutional rights aforementioned, the Law sets the following rules on the responsibility of internet application providers:
- The internet application provider must keep the application access logs under confidentiality in a controlled and safe environment for no less than six months; that period can be extended upon the requirement of the police authority, the administrative authority or the Public Prosecutor, as a precautionary measure.
- In any operation of collection, storage, retention and treating of personal data or communications data by connection providers and internet applications providers where, at least, one of these acts takes place in the national territory, the Brazilian law must be mandatorily observed, also in regard to the rights to privacy, protection of personal data, and secrecy of private communications and of logs. The infringement of such rule can result in the following sanctions, imposed either separately or cumulatively: (1) a warning, which shall establish a deadline for adoption of corrective measures; (2) a fine of up to ten per cent of the gross income of the economic group in Brazil in the last fiscal year, taxes excluded, considering the economic condition of the infringer, the principle of proportionality between the gravity of the breach and the size of the penalty; (3) temporary suspension of activities; or (4) prohibition to perform activities.
- Connection logs and access to internet applications logs, as well as personal data and contents of private communications may only be disclosed upon court order for the purpose of creating evidence in civil or criminal legal proceedings.
In order to ensure freedom of expression/ speech and to prevent censorship, the internet application provider is not subject to civil liability for damages resulting from content generated by third parties (ie, videos or publications inserted into the platform by its users), unless upon a specific court order, it will have failed to both take any action within the framework of its service, and make unavailable the content identified as being unlawful within the time fixed in the court order.
Considering the recent enactment of Law 12,965/2014, there are not as yet many court precedents on the matter, but Brazilian state courts have been applying the Law in order to force providers (mainly Google and Facebook) to disclose the IP (Internet Protocol) of the infringer and also to remove content (in any media, ie, videos, websites, posts or profiles) which infringes constitutional rights, produces or leads to a behaviour specified as a felony or violates copyrights law.
Content rating for audiovisual works
In order to guarantee the effective protection to children and adolescents, the Brazilian Constitution requires that previous information be given on the age bracket recommended for each audiovisual work (ie, films, entertainment shows and electronic games). In the case of a Web TV, whose product is distributed by VOD and real streaming, the company is the one responsible to give it a rating – age rank and content descriptors – following the rating standards of the Ministry of Justice. There is no need to request a rating from the Ministry.
Under Ordinance 368/2014 of the Ministry of Justice, the criteria that guide the public policy for content rating are based on three broad themes: sex, drugs and violence, whichis the content considered inappropriate to
the upbringing of children and adolescents.
The analysis is made counterbalancing the frequency, relevance, context, intensity and importance to the plot of scenes, dialogues and images containing violence, drug use and sex/nudity. This margin of subjectivity
ensures flexibilities that are critical to the process and to the rating result.
The Practical Guide for Content Rating provided by the Ministry of Justice establishes the following rating, which must be indicated in the Portuguese language:
- Livre (All ages admitted): this rating applies to works which contain predominantly positive contents and which do not bring unsuitable elements subject to age ranges higher than ten, such as the ones listed below:
– violence: fantasy violence; display of arms with no violence; deaths with no violence; bones and skeletons with no violence;
– sex and nudity: non-erotic nudity; and
– drugs: moderate or suggestive use of legal drugs.
- Não recomendado para menores de dez anos (Not recommended for minors under ten): the following contents are accepted for this age range:
– violence: display of arms with violence; fear/tension; distress; bones and skeletons with signs of violent acts; criminal acts without violence; derogatory language;
– sex and nudity: educational contents about sex; and
– drugs: references to the use of legal drugs; discussion on the issue ‘drug
trafficking’; medicinal use of illegal drugs.
- Não recomendado para menores de doze anos (Not recommended for minors under 12): the following contents are accepted for this age range:
– violence: violent act; body injury; violence references; sight of blood; victim’s pain; natural or accidental death with violence; violent act against animals; exposure to danger; showing people in embarrassing or degrading situations; verbal aggression; obscenity; bullying; corpses; sexual harassment; overvaluation of physical beauty; overvaluation of consumption;
– sex and nudity: veiled nudity; sexual innuendo; sexual fondling; masturbation; coarse language; sex references; sex simulation; sexual appeal; and
– drugs: use of legal drugs; inducing the use of legal drugs; medication misuse; illegal drugs references.
- Não recomendado para menores de catorze anos (Not recommended for minors under 14): the following contents are accepted for this age range:
– violence: intentional death; social stigma/prejudice;
– sex and nudity: nudity; erotisation; crude language; sexual intercourse; prostitution; and
– drugs: suggestive use of illegal drugs; references to the use or trafficking of illegal drugs; discussion on the ‘decriminalisation of illegal drugs’.
- Não recomendado para menores de dezesseis anos (Not recommended for minors under 16): the following contents are accepted for this age range:
– violence: rape; sexual exploitation; sexual coercion; torture; mutilation;
suicide; gratuitous violence/trivialisation of violence; abortion, death penalty, euthanasia;
– sex and nudity: intense sexual intercourse; and
– drugs: production or trafficking of any illegal drug; use of illegal drugs; inducing the use of illegal drugs.
- Não recomendado para menores de dezoito anos (Not recommended for minors under 18): the following contents are accepted for this age range:
– violence: violence of high impact; exaltation, glamorisation and/or
praising of violence; cruelty; hate crimes; pedophilia;
– sex and nudity: explicit sex; complex/ strong impact sexual intercourse (incest, group sex, violent fetish and pornography overall); and
– drugs: praising of the use of illegal drugs. It bears to mention that sports, advertisement and journalistic programmes are not subject to content rating.
Any citizen is qualified for inspecting compliance with content rating rules and denouncing the infringer before the Ministry of Justice children’s protection authorities, which may commence administrative proceedings in order to ascertain the unlawful act.
Notes
1 Available in English at: www.cgi.br/pagina/marco-civillaw-of-the-internet-in-brazil/180.
2 The law defines internet application as a set of functionalities that can be accessed through a terminal connected to the Internet. This definition applies to web TV platform.
Intellectual Property and Entertainment Law, Newsletter of the International Bar Association Legal Practice Division | VOLUME 8 ISSUE 1 JUNE 2016. Pages 12-15.