Some New Ideas on the Role of Legal Analysis applied to the Regulation of Telecommunications Services in Brazil
| Autor | Marcus Faro de Castro - Daniele Kleiner Fontes |
| Cargo | Studied law (LL.B.) at the Catholic University of Rio de Janeiro, and at the Harvard Law School (LL.M. and S.J.D.) - Holds a law degree from University of São Paulo |
| Páginas | 1-30 |
Some new ideas on the role of legal analysis applied to the regulation of telecom... (p. 1-30) 1
CASTRO, M. F; FO NTES, D. K. Some New Ideas on the Rol e of Legal Analysis applied to the Regulation of Telecommu nications
Services in Brazil.
Revista de Di reito Setorial e R egulatório
, Brasília, v . 2, n. 1, p. 1-30, maio 2016.
Some New Ideas on the Role of Legal Analysis applied to the
Regulation of Telecommunications Services in Brazil*
Algumas novas ideias sobre o papel da análise jurídica aplicada à
regulação de serviços de telecomunicações no Brasil
Submetid o(
submitted
): 26/10/2 015
Marcus Faro de Castro**
Daniele Kleiner Fontes***
Parecer(
revised
): 23/11/ 2015
Aceito(
accepted
): 14/12/2 015
Abstract
Purpose –
Th e paper a ims to p resent new ideas and analytical appr oaches developed in
recent yea rs by Brazilian legal scholars regarding regulat ion and econo mic development.
Regulatory law of telecommunications services i s taken a s an example of application of
such new ideas and analytical approach es.
Methodology/appr oach/design –
Two main approach es to the relationship betwe en law
and econo mic issues are described: the N ew Law and Development (NLD) approach and
the Legal Analysis of Econ omic Policy (LAE P) perspecti ve. The paper highli ghts
prominent idea s of each perspective.
Findings –
Th e paper s hows that there are structured ideas available in recent Brazilian
legal literat ure whic h have a non- negligible potential of being explored i n legal
discussions and analyses of economic policy and regu latory is sues of many sectors of
emerging econ omies, including the telec ommunications industry.
Originality/value –
The paper offers valuable co ntributions t hat may help in efforts to
enhance and innovate the role of leg al e xpertise in the regulatory process of several
economic sect ors, including the telecom munications sector.
Keywords: Internet regul ation, legal analysis, economic development, effective ness of
fundamental a nd human rights.
*
An earlier version of this paper was presented at the 5
th
Biennial ECPR Standing Group
for Reg ulatory Governance Conference, held in Barce lona, 25-27 June 2014, Universitat
Pompeu Fabra .
**
Marcus Faro de Castro studied law (LL.B.) at the Catholic University of Rio de Janeiro,
and at the Harvard Law School (LL.M. and S.J.D.). He was professor of the Depart ment
of Political Science and Internat ional Relations of the University of Bra sília from 1993 to
2003 and is currently Full Pro fessor of the Faculty of Law of the Univer sity of
Brasília. His curre nt research interes ts encompass the interdis ciplinary study of the
relationships between la w, democr acy and economic po licy in their local and
transnational dimensions, and also t he relationships between the evolution of legal id eas
and institution al change. Email: mfarounb@gmail.com.
***
Daniele Kleiner Fontes holds a law degree from U niversity of São Paulo, a master s
from University of Brasília with focus on Telecom regulation, and a LL.M. at Harvard
Law School with focus on Law&Tec hnology. Email: danielekfontes@gmail.com.
2
Some new ideas on the role of legal analysis applied to the regulation of telecom... (p. 1-30)
CASTRO, M. F; FO NTES, D. K. Some New Ideas on the Rol e of Legal Analysi s applie d to the Regulation of Telecommun ications
Services in Brazil.
Revista de Di reito Setorial e R egulatório
, Brasília, v . 2, n. 1, p. 1-30, maio 2016.
1. INTRODUCTION
In April 2014, the Brazilian government approved legislatio n establishing
several guidelines for internet service provision and use. The new law, dubbed
Brazil’s “Internet Constitution”, was hailed locally and internationally as a
remarkable innovation in the area of internet regulation, since it introduced clear
rules regardi ng the protection of freedom of expression and access to
information while also imposing limits on the gathering and use of metadata of
internet users in Brazil.
1
Brazil’s new legislation on internet regulation drew inter national
attention partl y because it incorpo rated several demands from internet users in
Brazil and elsewhere, but also bec ause it came in the wake of revelations of
extensive internet spying by states. Moreover, since it was formally approved
during the opening ses sion of the Net Mundial world summit, the new Brazilian
law was inevitably perceived as a legal fra mework that could potentially set
influential examples to be followed in future negotiations in the area of global
internet governance.
2
The adoption of Brazil’s “Internet Constitution” and the debates fostered
by the NetMundial summit in 2014 were politically charged and involved a
number of controversial aspects of internet regulation.
3
Far less controversial has
been the perception that widespread access to technologically advanced
information and communications technology has become increasingly relevant
to econo mic develop ment. The availabilit y of technologically up-to-date
broadband services has thus been considered a crucial condition for so cial and
economic development of nations around the world.
Indeed, in the last few years, digital development i n general and the
universalization of internet broadband services have been recognized as ke y
policies for social and economic development. The International
Telecommunications Union (IT U) has recently estimated an expansion of fixed-
broadband to more than 688 million and of mobile-broadband subscriptions to
2.1 billion.
4
Man y gover nments have elaborated national plans for the
1
See Reuters (2 014).
2
Cf. BBC News (2014), European Broa dcasting Union (2014), Monitor Glo bal Outlook
(2014).
3
The possibility that United Nations take up co ntrol of internet governance a nd the fact
that internet “giants” such as Google and Facebook (wh ose b usiness model relies on
citizens’ d ata) would benefit from ideas discuss ed in the NetMun dial Meeting were some
of the controver sial aspects of the debates. See BBC News (2014 ) and Monitor Global
Outlook (2014 ).
4
International T elecommunication Union (2013, p. 2).
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