The brazilian legal framework for media and communication is fragmented, with different rules for each service and their specific aspects. This legislation is the result of disputes between the State, the business sector and social agents, with each of them representing consequences of a political victory in a given historical moment. The result does not show a very cohesive picture. It is a legal framework with substantial gaps, both regarding the actual rules and also their implementation.
In a schematic representation, the legal "skeleton" of Brazil’s media legislation could be summarized as follows:
- Constitutional Principles
- Large service groups (broadcasting and telecommunications)
- Systems (private, public and State-owned)
- Services (sounds and images)
- Type of licence (broadcasting, educational, community)
- TV (broadcasting of sounds and images):
- Differentiation regarding the generation (generators, relays)
- Radio (broadcasting of sounds)
- Differentiation regarding the frequency (OM, OC, OT, FM)
- TV (broadcasting of sounds and images):
- Difference regarding the physical connection (fixed and mobile)
- Cable TV (Conditional Access Service)
- Internet (Multimedia Communication Service and Added Value Service)
- Other services
The Federal Constitution defines two central groups of communication services (broadcasting and telecommunications), which can be exploited directly or by third parties. Due to the privatization of telecommunications, the Art. 21 submits this sector to a specific regulatory body, the National Telecommunications Agency (Anatel). The text lays down a set of guidelines both for each individual service and the sector as a whole.
About freedom of expression, the Constitution states that: “it is free the expression of thought, being forbidden the anonymity" (Art. 5, item IV); “it is ensured the right to reply, proportional to the injury, in addition to the compensation for material damage, moral or to the image" (Art. 5, item V); “the expression of intellectual, artistic, scientific and communication activity is free, regardless of censorship or license” (Art. 5, item IX); “to everyone it is ensured the access to information and protected the confidentiality of the source, when necessary for the professional practice” (Art. 5, item XIV); “the expression of thoughts, the creation, the expression and the information, in whatever form, process or vehicle will not suffer any restriction, in accordance to the provisions of this Constitution” (Art. 220); and “it is forbidden all and any censorship of political, ideological and artistic nature” (Art. 220, § 2º).
The Constitution divides broadcasting activities in three systems: public, private and State-owned (Art. 223). It forbids monopolies or oligopolies in media (Art. 220, § 5º), restrains the ownership of journalistic companies or broadcasting stations only to Brazilians (born or naturalized), allows the presence of up to 30% of foreign capital.
These principles are detailed in specific pieces of legislation, presented and analyzed throughout the legal document as part of this project (SEE LIBRARY).
The Brazilian Telecommunications Code (CBT, Law 4.117/1962) became the legal frame for both telecommunications and broadcasting, but since the privatization of the telecommunication sector (1997) it only concernes the audiovisual broadcasting services radio and TV. In addition the law 11.652/2008 regulates the public broadcasting service in the scope of the federal government, authorizing the creation of the Brazil Communications Company (EBC). The Decree 5.820/2006 stipulates rules for the transition of radio and TV broadcasting to digital transmission in what came to be known as the Brazilian Digital TV System.
The telecommunication part was regulated by the Law 9.472/1997 (Telecommunications’ General Law). The cable TV became subject to the Law 12.485/2011 (Conditioned Access Service Law – SeAC). Some regulation relates to the Internet, but none of it establishes the offer of online content as a service or contains normative conditions for the operation of websites and portals.
The implementation and enforcement of these norms, as well as the general supervision of the services, is in charge of a group of institutions and authorities
(a) Ministry of Science, Technology, Innovation and Communications (MCTIC) - Defines most part of the communication’s policies. In this sector, it is responsible for:
1) formulating and implementing broadcasting and telecommunications public policies;
2) regulating, granting and overseeing broadcasting services;
3) controlling and managing the use of the radio frequency spectrum, in partnership with Anatel;
4) overseeing Anatel; and
5) performing postal services through Brazilian Postal and Telegraph Company.
(b) Ministry of Culture (MinC) - The Ministry plays an important role in the country's audiovisual policy. The Audiovisual Secretariat formulates and implements such policy by means of various programs, most of them focused on small and medium-sized producers. The Ministry has, amongst its attributions:
1) to partially formulate and implement audiovisual policy;
2) to implement incentive policies to agents, genres and formats;
3) to supervise the National Film Agency (Ancine); and
4) to formulate and implement the copyright policy.
(c) Communications Special Secretariat (currently linked to the Civil House of the President´s Office) - The Secretariat establishes and executes the institutional communications policies, including the actions related to advertising and political campaigns, as well as manages the public communication outlets. It is responsible for the supervision of the Brazil Communications Company (EBC).
(d) National Telecommunications Agency (Anatel) - It is the regulatory authority for the telecommunications services. Its assignments are
1) to implement the National Telecommunications Policy and the governmental decisions concerning it;
2) to regulate the telecommunications’ activities in the infralegal sphere (administrative acts, which do not have the force of law);
3) to grant permissions for telecommunications services; and
4) to manage the radio frequency spectrum.
(e) Film National Agency (Ancine) – Has the attribution to promote, to regulate and inspect the movies and audiovisual’s markets in Brazil. Ancine approves and controls the execution of co-production, production, distribution, and infrastructure projects carried out with public funding and tax incentives. The Agency’s key role in terms of media ownership is the regulation and enforcement’s supervision of the Conditional Access Services (pay TV).
(f) Economic Defense Administrative Council (Cade) - Federal authority linked to the Ministry of Justice. It is in charge of ensuring free competition by means of actions such as:
1) to analyze and decide on mergers and acquisitions, as well as on other moves that impact market structure;
2) to investigate and judge actions that may harm free competition (such as cartels); and
3) to promote the culture of free competition by means of awareness, education, studies and research actions.
Cade is not a specific body related to communications or broadcasting but influences these sectors because it has the power to make decisions about any action with impacts in competitive dynamics.
(g) National Parliament - The brazilian Parliament is composed by two houses, Deputies´ Chamber and Senate. Regarding the sector, in addition to developing and changing laws, the two institutions also have the prerogative to validate the concessions granting or renewals done by the federal government. Without their approval, the license has no legal validity.
(h) Judiciary - The Brazilian Judiciary has the prerogative to analyze cases formulated by public and private entities and apply sanctions in cases that don't comply with the law. In the sector’s specific case, the Constitution establishes that only the Judiciary and the power to revoke a concession before its deadline.