Regulação nacional de serviços na Internet: exceção, legitimidade e o papel do Estado

Abstract

The object of the thesis is the national regulation of online service providers. Its goal is to propose a specific approach to the regulatory environment fit for these services, considering how the technical nature of the Internet and its governance structure impose legitimacy and efficiency related challenges to regulators. On a second level, the work also aims to consolidate a theoretical and empirical basis of the subject matter able to inform the current debates on Internet regulation in Brazil. Regarding the technical nature of the Internet, the work describes the network s development process and its resulting features, along with their economic, social and political implications. Next, the Internet governance structure is approached through a subjective, objective and a normative perspective. Considering these descriptive premises, the approach of the regulatory design suited to these services is based on the literature on technology regulation, on the theoretical debates about Internet exceptionalism and on the implications that can be extracted from regulatory legitimacy requirements. The characteristics of this regulatory environment are analyzed through three perspectives, namely the justification of regulation (which demands that the promotion of innovation be included among regulation rationales), the appropriate institutional arrangements (an analysis that is anchored on the spectrum of the hybrid alternatives that run under the label of co-regulation) and the forms that should be employed (where alternative strategies to the command and control formula are explored). Based on these three performance standards, the Brazilian experience is approached on two case studies: the regulation of data protection (Law 13.709/18) and the regulation of content sharing platforms (Article 19 of the Marco Civil). These two analysis indicate that Brazilian regulators do not address the protection of innovation beyond its relationship with the legal security of entrepreneurs, and show little tendency for institutional and strategic regulatory experimentation in this field.