Descrição
Autores: Mariana Cunha e Melo
Sinopse:
This book is the outcome of a research conducted in the Master of Laws (LL.M.) program at New York University in the academic year of 2014/2015. This research focused on Internet and Constitutional Law doctrine in Brazil and the United States. Primarily, its goal was to present solutions to three issues poorly debated in Brazilian legal studies through a comparative analysis with the United States law. All three of the topics discussed in this book were ignored by the Marco Civil da Internet regulation in Brazil. In the wake of Brazilian Internet law systematization, it is important to move forward from what the Marco Civil has in fact accomplished and focus on the issues that were left behind. In this spirit, this research addresses, in its first part, the Constitutional prohibition of anonymity in Brazil. This provision is prescribed in the same article that guarantees freedom of expression. Quite incongruently, the Brazilian Constitution also protects data and communications secrecy, and reporter’s privilege. There is, therefore, an important question as to whether – and to what extension – the Brazilian Constitution in fact bans online anonymity. In the second part of the book, the discussion focuses on the restrictions copyright law imposes on free speech online. In this part, the analysis is limited to a critical view of the United States legislation. The objections to the current American law and the propositions formulated by the end of the topic, however, are also useful when analyzing the issue under the Brazilian law. For that reason, they should also be considered in an eventual Brazilian regulation of the issue. Finally, the third part of this book tackles issues related to transnational due process of law. The last topic proposes solutions to overcome geographic obstacles that still impair online business across the globe. The Marco Civil da Internet was passed into law amid great cheers of victory from Internet rights advocates. Even though the best interpretation and application of the Marco Civil are matters still open for debate, it is time for Internet law doctrine in Brazil to move forward and address some issues the Marco Civil left behind. The main goal of this research was to contribute to three topics the Brazilian Internet law should focus on next. They are: online anonymity, intermediary liability for copyright infringements, and transnational due process of law. Este livro é resultado de pesquisa conduzida na Universidade de Nova York no ano acadêmico de 2014/2015. O estudo se volta a questões não resolvidas pelo Marco Civil da Internet, sob uma análise comparativa do direito brasileiro e norte-americano. Todos os três temas se relacionam à defesa da liberdade de expressão e do devido processo legal nas relações jurídicas online.
Editora:Editora CRV
ISBN:ISBN: 9788544409503
DOI:10.24824/978854440950.3
Ano de edição:2016
Número de páginas:170
Formato:16x23
Compre a versão E-book nos principais marketplaces
Assunto:
M485m
Melo, Mariana Cunha e
The 'marco civil da internet' and its unresolved issues: free speech
and due process of law / Mariana Cunha e Melo. - 1. ed.
170 p.
Inclui bibliografia
Texto em inglês
ISBN 978-85-444-0950-3
1. Brasil. [Lei n. 12.965, de 23 de abril de 2014]. 2. Internet -
Legislação - Brasil. I. Título.
16-32847 CDU: 342.8
SUMMARY
INTRODUCTION
MARCO CIVIL DA INTERNET: origins and limits
CHAPTER ONE
ON ANONYMITY: a constitutional analysis
Introduction
PART I
DIAGNOSIS OF THE PROHIBITION OF ANONYMITY IN BRAZILIAN LAW
I. Background and origin of the prohibition of anonymity: the prohibition of
anonymity as a mean to ensure liability for abuses of speech
II. The development: broad interpretation of constitutional prohibition of
anonymity in Brazilian case law and statutes
III. Partial conclusion: limited purpose of prohibition of anonymity and its
dissonance with the application by the courts and Congress
PART II
NEED FOR A BALANCED INTERPRETATION OF THE PROHIBITION
OF ANONYMITY IN BRAZILIAN LAW
IV. Prohibition of anonymity as a restriction of fundamental rights and the need
for a balanced interpretation: fundamental rights, collision of constitutional
norms, and balancing of interests in Brazilian constitutional law
V. Interpreting the prohibition of anonymity: meaning, scope, and balance
V.1. Three types of anonymity and anonymization and the test to assess
their constitutionality
V.2. Fundamental rights in collision: privacy, free speech, and law enforcement
A. Anonymity as a free speech requirement
B. Anonymity as a privacy requirement
C. Anonymity as a data protection requirement
VI. A different perspective for the prohibition of anonymity – not everything
is prohibited and what is not prohibited should be protected: a test for a
constitutional balance
PART III
APPLICATION
VII. Generic considerations
VIII. On data retention: constitutionality of Marco Civil's data
retention provision, use of Privacy-Enhancing Technologies (PET), and
anonymization incentives
VIII.1. Marco Civil data retention provision
VIII.2. Privacy-Enhancing Technologies
VIII.3. Beyond authorization: should anonymization be incentivized where
it is not prohibited?
IX. On data disclosure: the constitutional requirements
IX.1. Need for minimal standards for disclosure
IX.2. Minimal due process standards: suing the messenger, not the speaker
IX.3. The invalidity of secondary liability for intermediaries in anonymous
speech cases
Conclusion
CHAPTER TWO
DMCA § 512 REFORM PROPOSAL: a free speech approach
Introduction
PART I
INTERMEDIARY LIABILITY IN THE US:
The Communications Decency Act of 1996 § 230
I. The Communications Decency Act of 1996 § 230
I.1. The defendant is an interactive computer service provider
I.2. The claim is based on information the defendant neither created
nor developed
I.3. The defendant is sued as a publisher or speaker
II. Partial conclusion
PART II
THE DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA)
III. Historical background and latest developments
IV. The current state of DMCA interpretation
IV.1. Actual and "red flag" knowledge
IV.2. The DMCA takedown notice process
V. The problem: the DMCA § 512 as an instrument to chill speech
VI. Conclusion: the solution proposed
CHAPTER THREE
INTERNET CONTRACTS AND CROSS-BORDER CONFLICTS
Towards a more connected future: cross-border due process and access
to justice
Introduction
PART I
CONFLICTS OF LAWS: an introduction to cross-border internet law
in light of US law
I. Introductory considerations
II. Conflicts of laws: origins and development
II.1. Judicial jurisdiction and competence
II.2. Choice of law
A. Territoriality
B. Nationality
II.3. Enforcing foreign authorities’ acts
PART II
PROPOSALS FOR A MORE COHERENT INTERNET: Online Alternative
Dispute Resolution (ODR) with a Brazil-US case study
III. Integration proposals
IV. The contractual approach: international arbitration as an integration tool
V. Back to the problem and one step in the right direction: Online Alternative
Dispute Resolution (ODR)
V.1. Viability in Brazil and underlying public policy
V.2. Market incentives
V.3. Scope
PART III
CONCLUSION
REFERENCES
