Constitution and the Internet: What Needs to Be Discussed Today?

In the contemporary era, the rise of the Internet has triggered an unprecedented revolution in how societies communicate, share information, and participate in political life.

This technological phenomenon, which began as a network of interconnected computers, is now a vital force permeating all aspects of modern life. In this context, a series of complex challenges arise that put traditional legal structures to the test, most notably the Constitution.

The Constitution, as the fundamental foundation of legal orders, is the document that establishes the normative basis of a nation, outlining the rights and duties of citizens, the limits of state power, and individual guarantees.

However, as society moves towards the so-called "information society," it is inevitable to question how constitutional principles, many of which were conceived in pre-digital times, can effectively adapt and guide in such a dynamic and technologically advanced scenario.

This article aims to explore the constitutional challenges that emerge with the advent of the Internet. In a world where digital boundaries transcend geographical barriers, it is crucial to examine how the values enshrined in national constitutions apply to cyberspace. The intersection between freedom of expression , privacy, security, and digital governance stands out as fertile ground for critical analysis.

Furthermore, rapid technological evolution and the emergence of issues such as net neutrality, cybersecurity, data protection, and access to information highlight the need for constitutional updates and adaptations. How can fundamental principles be preserved in the face of challenges that often transcend national borders?

Thus, this article seeks to offer an in-depth analysis of the constitutional challenges in the Internet age, highlighting the importance of rethinking and reforming the legal foundations to ensure that fundamental principles remain sound and applicable in a constantly transforming digital world.

The digital world never stops; it's constantly bringing new developments. We've previously covered articles on this IDP Blog on extremely important topics along these lines, such as: Trends in Digital Law and Data Protection ; What are the laws regulating e-commerce and protecting online consumers?; How does the law protect us against cybercrimes?

And we won't stop here; we will continue to bring you the best topics to keep lawyers and legal professionals updated. But without further ado, let's get to what matters right now: the Constitution and the Internet. What needs to be discussed today?

The Advancement of the Internet in Brazil and the World

Since its inception, the Internet has been at the forefront of an unprecedented revolution, radically transforming the way societies communicate, share information, and conduct business. Both in Brazil and worldwide, advances in this field have been remarkable, driving significant social, economic, and cultural changes.

The evolution of internet technology has been marked by significant advances in connection speed. The transition to broadband networks and the implementation of technologies such as fiber optics and 5G have enabled faster and more stable connections. These advances not only improve the user experience but also drive innovation in sectors such as healthcare, education, and entertainment.

In the business world, the Internet has been a catalyst for digital transformation. Companies worldwide use online platforms to expand markets, improve operational efficiency, and reach consumers globally. In Brazil, e-commerce has experienced exponential growth, demonstrating how the Internet can drive economic development.

The internet plays a fundamental role in shaping social interactions and disseminating culture. Social networks, content-sharing platforms, and instant messaging tools have redefined how people connect and share experiences. In Brazil, this is reflected in an increasingly connected society, influencing everything from how news is consumed to cultural expression.

Despite undeniable progress, the rapid spread of the Internet also raises critical issues, such as online privacy , cybersecurity, and unequal access. In Brazil and globally, governments and companies face the challenge of balancing technological innovation with the protection of individual rights and the promotion of an inclusive digital society.

The internet is the gateway to information, the fuel of democracy; however, this requires access to information. This access is currently provided through the internet. Surprisingly, in the 21st century, some countries, such as Iran, Burma, Cuba, and China, are experiencing increasing threats to internet freedom through content control and censorship, for example, which in itself demonstrates a violation of the right to information and freedom of expression.

The United Nations (UN) has stated that internet access is a human right and that disconnecting the population from the web violates this right. Article 19 of the Universal Declaration of Human Rights guarantees all human beings the right to information.

Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

The Internet and the Constitution

In Brazil, the Federal Constitution guarantees citizens the fundamental right to freedom of information, as stipulated in Article 5, item XIV, which states: "access to information is guaranteed to all, and the confidentiality of sources is protected when necessary for the exercise of a profession;".

Therefore, the right to inform and to be informed, and the confidentiality of sources, is a minimum requirement for those who practice a regulated profession. The Constitution requires professionals to respect the confidentiality of matters entrusted to them. Releasing secrets entails civil and criminal penalties, because the individual's private sphere is part of their right to privacy.

Parallel to this right, item XXXIII in the same article states: “everyone has the right to receive from public bodies information of their particular interest, or of collective or general interest, which will be provided within the time frame established by law, under penalty of liability, except for those whose secrecy is essential to the security of society and the State;” In this case, there is a right to receive information from public bodies.

In the legal framework below the Constitution, there is Law 12.965/14 (Marco Civil da Internet), which will be discussed in more detail later, which provides for the Right of Access to the Internet, with access to the internet being a right of all and essential to the exercise of citizenship, as well as defining the internet and other technical terms that are very common in the current life of a person connected to the network.

However, despite the Federal Constitution guaranteeing freedom of information and access to information, it does not mention internet access. Therefore, it is now necessary to include internet access in the Constitution as a social right and, consequently, a fundamental right, thus ensuring the well-being of our citizens.

The exercise of some fundamental rights is already fully dependent on internet access, such as access to the Judiciary, through the Electronic Judicial Process in all entities of the Federation, which are therefore present in the digital environment and, consequently, accessible only through the internet.

Furthermore, the Constitution, Justice and Citizenship Committee of the Chamber of Deputies recently approved the admissibility of Constitutional Amendment Proposal (PEC) 185/15 , which places "universal access to the internet" among the fundamental rights listed in the Constitution.

Law No. 12.965, of April 23, 2014

With the goal of regulating and formulating principles for internet use in our country, the Brazilian government approved Law No. 12.965 in 2014, better known as the Marco Civil da Internet (Brazilian Internet Bill of Rights). Law No. 12.965 is a federal ordinary law initiated by the Executive Branch that constitutes a kind of "Constitution of the Internet." This is because, being a principle-based legislation, its main purpose is to establish the principles, guarantees, rights, and duties for internet use in Brazil.

The principles of the Brazilian Internet Bill of Rights include guaranteeing freedom of expression, communication, and thought; protecting privacy and personal data; preserving and guaranteeing net neutrality; preserving the stability, security, and functionality of the network; holding agents accountable according to their activities; preserving the participatory nature of the network; and ensuring freedom of business models promoted on the internet.

As can be inferred from the document itself, internet access is essential to the exercise of citizenship, and therefore there are very important rights to be guaranteed, let's look at them in concrete terms:

Art. 7º Or access to the Internet is essential to the exercise of the citizenship, and to the user is only the following:

I – Inviolability of privacy and private life, its protection and compensation for material or moral damage resulting from its violation;

II – Inviolability and confidentiality of the flow of their communications over the internet, except by court order, as provided by law;

III - inviolability and secrecy of your private structured communications, except by judicial order;

IV – Internet connection will not be suspended, except for debt directly resulting from its use;

V – Maintaining the contracted quality of the internet connection;

VI – Clear and complete information contained in service contracts, detailing the protection regime for connection records and internet application access records, as well as network management practices that may affect its quality;

VII - no provision to third parties of personal data, including records of connection, and access to internet applications, except by free, express and informed consent or hypotheses provided for in law;

VIII - clear and complete information on the collection, use, armazenamento, treatment and protection of personal data, which may be used for purposes that:

a) justify your queue;

b) it is not closed to the legislature; and

c) this is specified in the contracts for the provision of services or terms for the use of internet applications;

IX – Express consent regarding the collection, use, storage, and processing of personal data, which must be presented separately from other contractual clauses;

X – definitive deletion of personal data that you have provided to a specific internet application, at your request, upon termination of the relationship between the parties, except in cases of mandatory record keeping provided for in this Law and in the law that provides for the protection of personal data; (Wording given by Law No. 13.709, of 2018) (Effective date)

XI - publicity and clarity of eventual policies of use of two providers of connection to the internet and internet applications;

XII - accessibility, considering the physical-motor, perceptual, sensory, intellectual and mental characteristics of the user, we are given the lei; and

XIII - application of consumer protection and defense standards to consumer relations carried out on the Internet.

Furthermore, guaranteeing the right to privacy and freedom of expression in communications is a condition for the full exercise of the right to internet access. Therefore, contractual clauses that violate these rights are null and void, as are those that infringe upon the inviolability and confidentiality of private communications via the internet, or those that, in adhesion contracts, do not offer the contracting party the option of adopting Brazilian jurisdiction for the resolution of disputes arising from services provided in Brazil.

Therefore, the Law provides for security and protection regarding Records, Personal Data and Private Communications, as follows:

Art. 10. Keeping and making available two records of connection and access to internet applications that this Law deals with, such as given data and the content of private communications, must serve the preservation of privacy, privacy, honor and gives images directly or indirectly involved parts.

§ 1 The provider responsible for storage shall only be obliged to make available the records mentioned in the heading, independently or associated with personal data or other information that may contribute to the identification of the user or terminal, by court order, in the manner set forth in Section IV of this Chapter, respecting the provisions of Article 7.

§ 2 The content of private communications may only be made available by court order, in the cases and in the manner established by law, respecting the provisions of items II and III of article 7.

§ 3 The provisions of the main clause do not prevent access to registration data that provides personal information, affiliation, and address, as provided by law, by administrative authorities that have legal competence to request it.

§ 4 The security and confidentiality measures and procedures must be clearly communicated by the service provider and must meet standards defined in regulations, respecting their right to confidentiality regarding trade secrets.

Art. 11. In any operation of queue, arming, keeping and treatment of records, of data given or of communications by providers of connection and Internet applications, in spite of the fact that they are less than others in the national territory, they shall be compulsorily respected. Brazilian legislation and the directives to privacy, to protection of two pessoais and to the secrecy of private communications and two registries.

§ 1 The provisions of the main clause apply to data collected within the national territory and to the content of communications, provided that at least one of the terminals is located in Brazil.

§ 2 The provisions of the main clause apply even if the activities are carried out by a legal entity based abroad, provided that it offers services to the Brazilian public or at least one member of the same economic group has an establishment in Brazil.

§ 3. Internet connection and application providers must provide, in accordance with regulations, information that allows verification of compliance with Brazilian legislation regarding the collection, storage, or processing of data, as well as respect for privacy and the confidentiality of communications.

§ 4º A decree will regulate the procedure for investigating violations of the provisions of this article.

Therefore, sanctions are established for when the prerequisites are not respected, as follows:

Art. 12. Sem prejudice of other sanções cíveis, criminais or administrative, as infrações às the norms foreseen nos arts. 10 and 11 ficam subject, as the case may be, às Seguintes Sanções, applied in an isolated or cumulative way:

I - warning, with indication of the term for the adoption of corrective measures;

II - a fine of 10% (dez per cent) of the failure of the economic group not in Brazil, not its last exercise, excluding taxes, considered to be an economic condition of infringement of the principle of proportionality between the severity of the offense and the intensity of the penalty;

III - temporary suspension of activities that involve all of the foreseen items no art. eleven; ou

IV - prohibition of exercises of activities that involve the foreseen conditions no art. eleven.

Sole paragraph. In the case of a foreign company, its branch, subsidiary, office or establishment located in the country is jointly liable for the payment of the fine referred to in the main clause .

Challenges to be addressed

The rapid expansion of the Internet poses significant challenges to the fundamental principles enshrined in the constitutions of many nations. In the face of this digital revolution, it is imperative to rethink and reform the legal framework to ensure that individual rights, civil liberties, and democratic principles continue to be effectively protected.

The massive collection of personal data, digital surveillance, and constant interconnectivity generate significant challenges to privacy protection. Constitutions have often failed to anticipate the extent of the digital age, demanding a careful review of laws to ensure that citizens can enjoy a robust private space in online environments.

Freedom of expression, the cornerstone of democracies, faces new challenges in the internet age. The spread of misinformation and fake news highlights the need to strike a balance between freedom of expression and protection against the spread of harmful information. Constitutions must evolve to address these threats to the integrity of public discourse.

Net neutrality, a principle that advocates for the equal treatment of all data on the Internet, is essential to guaranteeing equitable access to information. Challenges such as traffic discrimination and the prioritization of certain content require a careful analysis of constitutions to preserve equity in digital access.

The global nature of the Internet challenges traditional borders, giving rise to questions of transnational jurisdiction. Constitutions often fail to adequately address how to deal with legal conflicts that transcend borders, necessitating reform to tackle challenges such as law enforcement in online environments.

The growing threat of cyberattacks raises concerns about cybersecurity and digital sovereignty. Constitutions need to incorporate provisions that allow for effective protection against digital threats, while ensuring that defense mechanisms do not unduly compromise civil liberties.

In short, the constitutional challenges in the Internet age highlight the pressing need to rethink and reform the legal foundations. The constant adaptation of constitutions to address emerging issues is essential to ensure that fundamental principles endure in a constantly transforming digital world, thus preserving the essential values that underpin democratic and just societies.

Challenges to Privacy and Freedom of Expression

The rise of the digital age has brought with it a series of complex challenges related to privacy and freedom of expression. While global connectivity and online platforms provide unprecedented opportunities for the exchange of ideas and interaction, these advances have also raised significant concerns regarding the protection of individual privacy and the proper balance of freedom of expression. In this context, it is crucial to closely examine the challenges faced by these two fundamental pillars of contemporary society.

The massive collection of personal data by companies and governments represents a substantial challenge to privacy. Online tracking, behavioral analysis, and the sale of personal information raise ethical questions about informed consent and the need for more robust regulations to protect individual privacy.

The expansion of government surveillance capabilities, often in the name of national security, jeopardizes citizens' privacy. The search for a balance between security and the preservation of individual rights is a constant dilemma, especially in the face of growing cyber threats.

Furthermore, the uncontrolled spread of misinformation and fake news online poses a threat to the integrity of public discourse. The difficulty in distinguishing between accurate and misleading information challenges the ability of platforms and users to maintain a healthy information environment. The search for a balance between protecting privacy and preserving freedom of expression often leads to debates about the need for stricter regulations.

Digital platforms, such as social networks and search engines, play a crucial role in facilitating expression and collecting data. However, the responsibility of these platforms in moderating content and protecting privacy has become a point of controversy, highlighting the need for clear and transparent guidelines.

The Role of the Lawyer

The role of lawyers in addressing the challenges involving the Internet and the Constitution is fundamental in the search for legal solutions that reconcile rapid technological evolution with the protection of fundamental rights. They are primarily responsible for interpreting constitutional provisions in light of the contemporary challenges presented by the Internet. This includes analyzing how principles such as privacy, freedom of expression, and individual rights apply to specific cases in the digital environment.

Therefore, lawyers act as defenders of their clients' individual rights, especially regarding online privacy, freedom of expression, and protection against discriminatory practices. They can seek redress in cases of violations of these rights, whether by companies, governments, or other actors in cyberspace.

Faced with complex issues such as disinformation, cybersecurity, and net neutrality, lawyers develop legal strategies to guide their clients and address specific legal challenges. This involves analyzing existing laws and case law, and formulating consistent legal arguments.

In situations where legal issues transcend borders, lawyers act in defense of their clients in cases of transnational jurisdiction. This may include understanding and applying the laws of different jurisdictions to ensure adequate protection of the rights of the individuals involved.

Given the dynamic nature of internet-related legislation, lawyers closely monitor changes in laws and regulations. They seek to understand how these changes may affect their clients and, when necessary, advocate for legislative reforms that reflect the interests and rights of those they represent.

Furthermore, lawyers play an essential role in mediating and resolving disputes related to the Internet and the Constitution. They seek negotiated solutions, avoiding protracted litigation whenever possible, but are also prepared to represent their clients in court when necessary.

Lawyers have a role to play in educating clients, companies, and society in general about the legal issues associated with the Internet and the Constitution. This includes raising awareness about rights, responsibilities, and legal implications in the digital context.

Conclusion

Digital transformation and the accelerated advancement of the Internet have triggered profound challenges to the constitutional principles that underpin contemporary societies. Throughout this text, we explore how privacy, freedom of expression, net neutrality, and other fundamental values are facing new challenges in the digital age.

Privacy, once considered an inalienable right, finds itself in an unstable equilibrium, threatened by the massive collection of data, digital surveillance, and cybersecurity challenges. Freedom of expression, a democratic pillar, is tested by the spread of misinformation and the need to find boundaries between protection against harmful speech and guaranteeing a pluralistic information environment.

Net neutrality emerges as a crucial issue, determining equality in access to information and preventing discriminatory practices. Global interconnectedness also challenges traditional national jurisdiction, demanding innovative approaches to resolve conflicts and protect rights in a digital environment without clear borders.

Faced with these challenges, the role of the lawyer becomes essential. Legal professionals play a crucial part in constitutional interpretation, defending individual rights, developing legal strategies, and mediating conflicts. Their work is vital in the pursuit of a delicate balance between technological innovation and the effective protection of values enshrined in constitutions.

Ultimately, rethinking and reforming the legal framework becomes a pressing need. Constitutions, many of which were conceived in pre-digital times, must evolve to meet emerging challenges and ensure that fundamental principles remain sound and applicable in a constantly transforming digital world. Legal adaptation is crucial to ensuring that the digital revolution is conducted ethically, fairly, and in accordance with the values that underpin democratic and equitable societies.