Is leadership sterile? from Brazil
One of CELE's main concerns is to closely follow the regulatory processes that affect the Internet, under the premise that they determine what the Internet is for us. These processes are complex and only partially legislative, many times other forms of regulation are the main determinants of the ways in which information flows on the Internet.
The law is, however, important. The Communications Decency Act out of 1996 created to the Internet as we know it, as it established a principle of immunity for intermediaries that was intended to encourage the development of a nascent industry and favor the free flow of information. To do this, he sought to eliminate a principle of common civil liability suggested by the New York Supreme Court in 1995 that would have generated a strong incentive for care, precaution, and censorship in the private intermediary actors.
That rule then underwent a process of regulatory globalization: it arrived—changed—in the European Union through the Electronic Commerce Directive of the year 2000 and then it was adopted and adapted by various courts (as in Argentina and Colombia), but also by legislatures that imitated the same or similar solutions. One of the most notorious examples in this sense was the Brazilian Internet Civil Framework, that after a gestation process under the paradigm of the multi-stakeholder process adopted a protective legal framework unprecedented in the region.
The event was relevant for a number of reasons. Brazil is one of the few countries in Latin America whose market is, in itself, a considerable source of income for the transnational companies that concentrate Internet traffic. Therefore, what Brazil thinks, says, or regulates, is important. On the other hand, the Marco Civil was pioneering legislation in the region, and it was to be expected that other countries would imitate Brazil “following its lead”. Some of that was seen in other legislative processes. We think, for example, of the laws on access to information in Mexico and Chile at the beginning of the century. It was not unreasonable that a similar phenomenon could have occurred there.
And yet it didn't happen. What Brazil does matters, but not so much outside of Brazil. (Or, at least, not for the rest of the Latin American countries). The Marco Civil process was not imitated by other countries and this constitutes a relevant research question. Why wasn't it? What kind of obstacles prevented—at the time—the Brazilian leadership in Internet matters from not being followed by other Latin American countries? Understanding this historical event may be relevant especially in the face of the discussion, in Brazil, of the bill 2630/2020, which seeks to regulate the platforms in a similar way to the Digital Services Act of the European Union. The discussion can be posed in terms of following up on the previous trajectory (European regulation, Brazilian legislation, Latin American inaction). Could it be repeated? Brazilian exceptionalism?
Why?
There are obviously several possible explanations that we could validate against the hypothesis that we present. For example, it is possible that the difference in languages constitutes a barrier to cross-border regulatory migration, an explanation that we could validate against other scenarios (eg, personal data laws).
It is also possible that in other countries lobbying powers operate at the heads of the platforms that in Brazil are less efficient (due to the self awareness of a regulatory power that is absent in other countries of the region). Or perhaps the Brazilian mediation is not necessary before the Brussels effect, where the influence of the "models" that come from Europe operates directly and without intermediaries.
It is also possible that Brazil is not interested in exporting its regulations and is missing—thus—an element that has proven to be important in other phenomena of regulatory migration (think, for example, of the role of multilateral credit organizations in promoting regulations). access to information laws modeled under the paradigm of the Freedom of Information Act of the United States as a recommended action within the framework of anti-corruption agendas).
And it may also be that in other cases of migration and transplantation other mechanisms of regulatory globalization have operated, such as the coercion involved in the negotiation processes of free trade agreements (which in Latin America were a preponderant channel for the expansion of protections of copyrights created in the image and likeness of the regulations of the United States).
In any case, the limited scope of the Brazilian leadership is still an interesting event that seems especially relevant in the face of regulatory discussions. Perhaps underlying this true phenomenon exceptionalism Brazilian, which is revealed, for example, in its historical distance from the inter-American human rights system or its low influence on comparative law in Latin America.
If that were the case, the question posed is worth asking: perhaps what is behind the more or less unprecedented regulatory action in Brazil has more to do with a certain isolation based on a correct perception of the scope of its regulatory power than with an effort to lead the region in this matter, either through the mechanism of modeling or the entrepreneurship direct normative. (Which, he would say, was present to some extent in the Marco Civil process). If that were the case, the rest of the Latin American countries would do well to look at Brazil with interest, but not excessively.
