Online Sexual Publics and the Debate on Internet Regulation in Brazil

Context

A Brazilian constitutional reform in 1988 delivered a bill of rights solidly grounded in human rights and democratic principles of non discrimination, freedom, equality and equity, the right to privacy, gender and racial equality and due judicial process. The constitutional text also gives priority to the protection of children’s rights, and after ratifying the UN Convention on the Rights of the Child (CRC, 1989), the Child and Adolescent Statute was adopted (1990). The current state institutional framework also privileges citizens’ participation in government affairs through public consultations and a sizeable development of civil society organisations.

Despite its institutional development and political stability, challenges to gender and sexual justice persist. Abortion remains illegal (except in the case of rape and life risk), levels of violence against LGBT (lesbian, gay, bisexual, transsexual and transgender) persons are high and conservative religious leaders who have accumulated political power in recent years systematically oppose and attack the sexual rights agenda. While a broad and diverse constituency supports the protection of children’s and adolescents’ rights, calls for gender equality and LGBTrights face strong cultural resistance.

In 2009, 67.5 million people in Brazil had internet access, with a recent increase among women, teenagers and children. Participation in social networking platforms such as Orkut is particularly significant. In 2008, roughly 50 percent of Orkut worldwide membership was Brazilian (around 23 million people). The web has multiplied and amplified people’s capacity to get information, engage in exchanges and mobilise politically, bringing novel notions of interactivity to the logics of public sphere dynamics. Web exchanges and performances have the virtue of forming and re-shaping subjectivities, gender and sexual hierarchies. Sexual expression and communication, and the performance, empowerment, and contestationof sexual identities are characteristic of online social networking activity. The development of sexuality in this environment promises pleasure and represents danger, as appropriated by actors with different moral engagements. In other words, the internet is a space propitious to non-(hetero)normative expressions, and is subject to a regulating discipline.

This research examines internet practices, regulation initiatives, public debates, legal instruments and public policies, as related to the performance of sexuality, online citizenship and freedom of expression in Brazil.

The study is comprised of two components. One examines the Brazilian internet regulation debates in search for connections, disjuncts and blind spots at the intersection between legislative and law-enforcement investments, sexuality and human rights, within the conceptual framework of democratic deliberation. Discourses and policy addressing paedophilia and child pornography and their effects on the regulatory debate were investigated, as well as the engagement (or absence) of key actors from the field of sexual rights. Additionally, the process leading to the proposal of a Civil Framework for Internet Regulation was monitored as part of the public debate on internet regulation and its effects on the exercise of sexuality online.

The other component of the study addressed online practices by internet users by means of an ethnographic approach, which meant accessing virtual spaces for direct observation of virtual sociability. This was based on the assumption that web exchanges and performances have the virtue of forming and re-shaping not only subjectivities, but also public opinion. Two online social domains were examined. The first involved online expressions of anti-lesbian prejudice and the struggle of lesbians and sympathisers who respond to them as they exercised their creativity to contest mockery and verbal harassment. The second was a virtual community of individuals engaged in an effort to legitimise lust and romantic relationships between adults and adolescents, while contesting them being labelled as a “paedophile” movement.

The shifting legal and policy landscape on internet regulation

The Internet Steering Committee (CGI.br), created in 1995, acts as the main internet regulatory body in the country. Its members include representatives from government, the private sector and civil society. Brazilian legislators moved in the same direction as countries and regions which adopted a criminal approach to internet regulation, such as the Digital Millennium Copyright Act (US) and the Budapest Convention (EU). Since 1999, draft bills aimed at the use of criminal law to regulate internet traffic have been debated at the Congress level. In the same period, web-based child sexual exploitation gained visibility, and in the 2000s a series of law enforcement operations and legislative initiatives addressed web-based child pornography, as well as cyber fraud, data appropriation and racism. The approval of the “Azeredo Bill” by the Senate is a highlight in this process. A crosscurrent of interests played behind it: the bank system, phonographic companies, law enforcement agencies, actors concerned with national security and child protection groups.

A lawsuit against Google for not providing access to data on users suspected of taking part in child pornography networks gained global visibility and forced the company to sign an agreement to allow the monitoring of web based crimes and rapid access to data requested by the judiciary. In early 2008 a Parliamentary Inquiry Commission (CPI) on Web-based Paedophilia was established at Congress level, presided by a senator/evangelical minister, known for his stand against abortion and homosexuality. Calls for the criminalisation of web-based child pornography and paedophilia, which had spiralled around the “Azeredo Bill”, had a catalysing effect on the dynamics leading to its approval. As a response, Brazilian cyber and communications activists mobilised in opposition to the bill. Petitions calling for a presidential veto triggered a series of public events in 2009 which became known as the “Mega NO” campaign.

In early 2009 CGI.br issued a Decalogue of Principles grounded on human rights premises, bringing a different approach to internet regulation. In response to this convergence of interests the President’s Office requested that a juridical alternative to the “Azeredo Bill” be explored. In October 2009 an online public consultation was launched to build the foundations for a Civil Framework on Internet Regulation. From there, a draft was posted for open consultation in April 2010 and by June, was submitted to the House.

These recent debates have been a noteworthy experience of democratic deliberation. For the first time in Brazil, a piece of legislation was drafted based on a public e-consultation. The Civil Framework introduced a shift from the appeal of a criminal justice approach to a human rights and civil law perspective, critical in relation to internet rules and regulation. This e-consultation created a new field for democratic deliberation which allowed equal access to all actors interested, regardless of their economic and political power. The same rules applied to state institutions (such as law enforcement agencies), private
companies, users and activists. However, some actors expressed caution and challenges to the development of this process were identified. For instance, in contrast to the mobilising effect of the proposed “Azeredo Bill”, the e-consultation did not catalyse substantive dialogue, interaction or joint actions between child protection advocates, feminists, LGBT rights advocates and cyber activists. This absence of conversation among relevant civil society actors apparently led to their failure to compete with the discourse on protection, abuse and sexual morality deployed by conservative religious voices.

The partial approval of the “Azeredo Bill” has not led to the immediate adoption of strict censorship of the internet. However, alarm about online child abuse and control initiatives often based on distorted descriptions of the problem have been disseminatedin society, fostering a sense of moral anxiety. Such a climate might propel resistance to sexual rights broadly speaking, and restrict the space for and terms of debate around sexuality issues. For instance, no consistent public discussion has developed in relation to legal inconsistencies, the unanticipated effects of criminalising the possession of child pornography or the calls to raise the age of sexual consent from 14 to 18 - to ensure harmonisation with US and European legislation - fuelled by the struggle against web-based child pornography.

Sexuality on the internet

In Brazil, online social networks such as Orkut, Twitter and Facebook have become a privileged means of communication for the LGBT public, particularly among youths who make novel, meaningful appropriations of these spaces. These platforms have also allowed people whose sexual orientations, experiences or identities are marginalised to meet online and interact, creating new forms of sociability and organisation or re-creating old ones.

Leskut (a contraction of “Lesbian and Orkut”) is a member-only community on the Ning social networking platform for lesbian and bisexual women, where male participation and explicit sexual content are prohibited. Rules are enforced by an active moderation team who exercise their power to protect community members from unwanted intrusions. This moderation style illustrates a particular view on the role of self-regulation as a means of identity affirmation and community building.

There is another form of pro-lesbian mobilisation that takes place in Orkut. In response to online anti-lesbian bullies, some members (including self-identified lesbians as well as female and male sympathizers) post comments as a protest against lesbophobia. Most of these exchanges are jocular. While not regarded as “activism” in terms of established conventions of offline politics, such engagement is a meaningful form of sexual affirmation, struggle against prejudice and hate speech and in the search for online safety.

A third form of identity affirmation and community building found in Orkut is the “Against Inter-Age Prejudice” community, whose forum addresses love and lust between adults and adolescents. While disclaiming public assessments of their orientation as either a psychiatric diagnosis or a crime, community members debate law-making and law-enforcement investments against paedophilia, as well as restrictive age of consent regulation. This presents an interesting, if uncomfortable counter-discourse to the overall climate of moral anxiety around paedophelia.

The complex terrain of political change, sexual movements and agency

While reports and proposals in relation to child protection have had an impact on Brazilian debates about web regulation, this episode should not be read in isolation, but as one piece of a broader puzzle, namely, the meanings and direction of the Brazilian democratic experience. Agendas are clearly fragmented, as constituencies engaged in sexual rights, child protection and cyberpolitics debates have not met the challenge of openly addressing controversial issues such as (i) the need to distinguish between paedophilia (a psychiatric term), child pornography (a criminal law term) and sexual abuse and exploitation of children and adolescents (a human rights language); (ii) the implications of resorting to criminal law as a means of social regulation and social pedagogy; or (iii) the implications of raising the age of sexual content. Engaging those issues collectively would mean expanding the boundaries and contents of democratic deliberation significantly.

The case study on national level debates suggests that Brazilian web regulation could benefit from a balancing of rights perspective, aimed at striking a consensus on the parameters to guide on the one hand, the adoption of normative measures with respect to child protection from sexual abuse and on the other, curtail potential restrictions on the discourses and proposals concerning sexual rights. To form a solid enough balance requires systematic deliberation across different constituencies and perspectives, which has not happened so far.

A cross-dialogue between child protection advocates, feminists, LGBT rights activists and the cyberpolitics communities is not an easy task. Within the human rights conceptual framework it is neither simple nor easy to disentangle the structural tension between agency and consent on the one hand, and coercion, domination and violence on the other.

This is further complicated by the kinds of “political activism” that takes place by the diverse range of users and interests as shown through the online ethnographic study. Although it revealed a wide proliferation of discourses on sex and expressions of sexuality, the liberal idea of internet users as autonomous subjects - equally endowed with free will and fully accountable for their acts - as ideal citizens of the digital era should be questioned. This needs to take into account sources of inequality expressed not only by differentials in access and digital literacy, but also by broad forms of symbolic domination, processes of class formation and the operation of numerous markers of distinction. The way internet regulation discussions are framed politically simplifies and naturalizes a monolithic conception of an internet “user” as a self-consistent subject, without taking into account the ways these subjects are construed on the internet.

Orkut community activity challenges the assumption of consistency between subjects and their “politics”. “Political action” is an analytical concept, whereas individuals act according to multiple contexts, networks connections and forms of reflexivity. The use of ICTs is intersected by social hierarchies. Regulation initiatives, as well as the acts of violence and expressiveness observed, show and reaffirm those hierarchies. Online communities - as public/private hybrids - greatly facilitates identity affirmation and the expression of sexuality, which speaks to the internet’s potential regarding sexuality and freedom of expression. This field is political in unconventional ways, as interactions that take place there could hardly take place elsewhere.

The mobilisation of women and men on behalf of lesbians in response to attacks on their right to freely exercise their sexuality challenges conventional understandings of what should be considered activism. In the same manner, the creation of an online community to openly address the controversial issues of inter-age sexual relationships -where the CPI on Paedophilia is openly criticised - reveals an awareness of connections between current internet regulation debates and sexuality, which are nowhere else to be found.

These experiences contrast in many ways with established forms of state and media centred offline activism. The dynamics at play in these online spaces are not trivial in light of a social, political and policymaking environment where, on the one hand, the spectre of child pornography is mobilised to justify law enforcement’s unrestricted access to logs; and on the other hand, the national LGBT movement has made the criminalisation of homophobic speech their legal reform flagship. Moral panics do not (only) produce censorship, but specific forms of knowledge about the behaviours and subjects under moral attack, and those portrayed as victims.

The interaction between online aggressors and their targets, unique due to the interactivity and anonymity facilitated by internet technology can produce changes in perceptions and practices, and serves as a counterpoint to the observation that internet users - including Brazilian feminist and LGBT activists and organisations - have neither invested on internet regulation debate nor on the controversies around child pornography that “contaminate” that debate. In contrast with the apparently low level of engagement by more formal sexual rights activists with these debates, the everyday investments of individuals in the two online spaces studied seem relevant. Initiatives to regulate the internet more  restrictively might also restrict the voices of those who respond to bullying, since they might enable aggressors to mobilise censorship tools against the speech of those
who respond to attacks.

While possibly disturbing to some, the case of the community “against Inter-Age prejudice” (arguably a euphemistic name for paedophilia, broadly defined) might also serve as provocation, a test to the complexities and disruptions potentially introduced in discussions about free speech or to expected alignments in the struggle for sexual rights, on the one hand, and freedom of expression and rights to information on the other.

Read the full Brazil country report:
Brazil: Internet regulation and sexual politics in Brazil
Sonia Corrêa, Marina Maria and Jandira Queiroz (Sexuality Policy Watch)
and Bruno Dallacort Zilli and Horacio Federico Sívori (Latin American Center on Sexuality and Human Rights, CLAM)

Sexuality Policy Watch & Latin American Center on Sexuality and Human Rights

 

Photo by bixentro