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In brief

President Jair Bolsonaro signed provisional measure (PM) No. 1.068/2021 on 6 September 2021, amending the Brazilian Internet Legal Framework, which regulates the use of the internet in Brazil. The PM does not apply to messaging and mobile commerce apps, establishes “rights and guarantees” for users of social networks, and defines rules for content moderation.


The Internet Legal Framework currently stipulates that application providers are free to remove content that violates their terms of use, and may only be held liable for not removing it if they fail to comply with a court order that identifies the specific content. In contrast, the PM indicates that there must be a fair reason and motivation for the “cancellation or suspension of features of accounts or profiles” or for content to be taken down.

The PM provides the following different scenarios, among others, in which there would be fair reason for the exclusion, cancellation or suspension of the account or profile: user’s lack of payment; accounts created for the purpose of assuming or impersonating the identity of third parties to mislead the public; accounts that offer products or services that violate patent, trademark, copyright, or other intellectual property rights; and compliance with a court order.

In the case of exclusion, suspension or blocking of dissemination of specific content, a fair reason will occur in the following scenarios: violations of the Child and Adolescent Statute; nudity or explicit or implicit representations of sexual acts; committing, supporting, promoting or inciting crimes against life; pedophilia; terrorism; trafficking; practice, support, promotion or incitement to acts of threat or violence, including reasons of discrimination or prejudice based on race, color, sex, ethnicity, religion or sexual orientation; request from the offended party, their legal representatives or their heirs, in the event of violation of intimacy, privacy, image, honor, protection of their personal data or intellectual property; compliance with a court order, among others.

The PM also creates a specific procedure to be adopted by social networks to remove content, determining that the user must be notified of the exclusion, cancellation or suspension, in whole or in part, of the services and functionalities of their account or profile. Such notification, which may occur by electronic means, must be given prior to or concomitantly with the measure adopted by the platform, and must provide the motivation for the decision and information on deadlines, electronic communication channels and procedures for the response, and possible review by the application provider.

The PM stipulates a period of 30 days for social networks to adapt their policies and terms of use to the new rules. The PM also provides administrative sanctions in case of noncompliance with its rules, including warnings, fines of 10% of the companies’ revenues, and even the suspension and prohibition of specific activities.

Different lawsuits have been filed before the Supreme Court to declare such PM unconstitutional, with preliminary injunction requests to suspend its effects. On 8 September, Reporting Justice Rosa Weber rendered a decision summoning President Bolsonaro, the General Attorney’s Office and the Federal Prosecutor’s Office to provide information within 48 hours (to be counted from their summoning). Several entities are also pressuring the President of the Congress to return the PM to the President, on the basis of noncompliance with the formal requirements.

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*In cooperation with Trench Rossi Watanabe, a Brazilian law firm.

Author

Marcela Trigo is a partner in Trench Rossi Watanabe in the Intellectual Property and Information Technology Group and has over 10 years of experience in complex litigation, before state and federal courts in Brazil, having acted in several leading cases in the area of Industrial Property. Her practice focus, Acts primarily representing clients in legal disputes involving patents, trade secrets, data package exclusivity, unfair competition and regulatory compliance, in particular in the pharmaceutical, biotechnology and telecommunications fields.

Author

Flávia Rebello Pereira is an Of-counsel in Baker McKenzie Rio de Janeiro office.

Author

Flavia Amaral is a partner in Baker McKenzie Sao Paulo office, in cooperation with Trench, Rossi and Watanabe Advogados.

Author

Flávia Vasconcelos joined the Firm in 2001, became partner in 2006 and Of Counsel in 2019. She coordinates the Trademark group in the Brazilian offices and integrates the Consumer Goods & Retail group, acting with a focus on brand management, advisory and licensing, including trademark availability searches, filing and prosecution, advice on brand and domain name protection and enforcement, and registration of trademark license agreements. She also assists clients with protection of plant breeders' rights and copyrights management and licensing. She represents clients in the consumer goods and retail, including apparel, luxury cosmetics and jewelry, beverages, chemical, pharmaceutical, automotive, CRM, telecommunications/electronics, agriculture and construction machinery, transportation, music and plant variety segments, having extensive experience in consulting regarding the protection of intellectual property rights.

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