BRAZIL
Reported in 2022
Pillar Telecom infrastructure & competition |
Indicator Presence of shares owned by the government in telecom companies
Presence of shares owned by the government in the telecom sector
Telecomunicações Brasileiras SA (Telebras), the former incumbent, is a state-owned company created by Law No. 5,792 of July 1972. As established by Decree No. 7.175 of 2010, its task is to implement public policies related to the universalisation of telecommunications access in Brazil. As of December 2022, it was reported that the government-owned approximately 97% of the company's shares. Of these, 93% were held by the Federal Government, while 4% were held by Financiadora de Estudos e Projetos (FINEP). FINEP, a Brazilian federal organisation under the Ministry of Science and Technology, is responsible for financing scientific and technological advancements in the country.
Coverage Telecommunications sector
Sources
- https://web.archive.org/web/20221006011450/http://www.planalto.gov.br/ccivil_03/_Ato2015-2018/2018/Decreto/D9612.htm#art14
- https://web.archive.org/web/20230322072056/http://www.planalto.gov.br/ccivil_03/_Ato2015-2018/2018/Decreto/D9612.htm
- https://www.telebras.com.br/wp-content/uploads/2023/03/124320_011258_17032023180318.pdf
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BRAZIL
N/A
Pillar Telecom infrastructure & competition |
Indicator Functional/accounting separation for operators with significant market power
Requirement of accounting and functional separation for dominant network operators
It is reported that Brazil mandates functional and accounting separation for operators with significant market power (SMP) in the telecom market.
Coverage Telecommunications sector
BRAZIL
Since July 1997, last amended in June 2021
Pillar Telecom infrastructure & competition |
Indicator Licensing restrictions to operate in the telecom market
General Telecommunications Law No. 9,472/1997 (Lei Geral das Telecomunicações No. 9.472/1997)
According to Art. 86 of the General Telecommunications Law, a telecommunication service license can only be granted to companies organised and existing under Brazilian law and which have their principal place of business and administration in Brazil. Furthermore, Art. 87 determines that any company or holding company granted a concession that already renders, in the same geographical area, the same type of service subject to a bidding procedure will be obliged to transfer the service previously rendered to a third party within 18 months from the execution date of the concession agreement. Failure to observe this provision can result in forfeiture of the license, as well as other sanctions set out in the grant procedure.
Coverage Telecommunications sector
BRAZIL
Reported in 2022, last reported in 2023
Pillar Telecom infrastructure & competition |
Indicator Licensing restrictions to operate in the telecom market
Discrimination of foreign satellite operators
It has been reported that although Brazil permits Brazilian-owned entities to acquire the exclusive right to operate a satellite and its associated frequencies from specific positions, foreign-licensed satellite operators may obtain only a non-exclusive right (a landing right) to provide service in Brazilian territory. The National Telecommunications Agency (ANATEL) grants these landing rights for a fixed term of no longer than 15 years, after which the operator must reacquire the landing rights in order to continue providing services. Foreign operators are also required to pay higher annual landing fees than Brazilian firms.
Coverage Satellite operators
BRAZIL
N/A
Pillar Telecom infrastructure & competition |
Indicator Signature of the WTO Telecom Reference Paper
Lack of appendment of WTO Telecom Reference Paper to schedule of commitments
Brazil has not appended the World Trade Organization (WTO) Telecom Reference Paper to its schedule of commitments.
Coverage Telecommunications sector
BRAZIL
N/A
Pillar Telecom infrastructure & competition |
Indicator Presence of an independent telecom authority
Lack of an independent telecom authority
Brazil has a telecommunications authority: The National Telecommunications Agency (ANATEL). However, it is reported that the decision making process of this entity is not fully independent from the government.
Coverage Telecommunications sector
BRAZIL
Since March 2018
Since July 2014
Since July 2014
Pillar Cross-border data policies |
Indicator Ban to transfer and local processing requirement
Ordinance No. 9/2018 (Portaria No. 9, de 15 de março de 2018)
Complementary Standard 09/IN01/DSIC/GSI/PR (Norma Complementar 09/IN01/DSIC/GSI/PR)
Complementary Standard 09/IN01/DSIC/GSI/PR (Norma Complementar 09/IN01/DSIC/GSI/PR)
According to Section 5.3 of Ordinance No. 9/2018, data, metadata, information and knowledge produced or stored by Federal Public Administration (FPA) bodies and its backups shall reside in the Brazilian territory. In addition, Section 5.4 stipulates that the data, metadata, information and knowledge generated or held by a FPA entity or body relating to personal data (relating to intimacy, privacy, honour and image), information with restricted access under current legislation and preparatory documents may be processed in a cloud computing environment at the discretion of the FPA entity or body, taking into account current legislation, but must reside exclusively on Brazilian territory. According to the Complementary Standard 09/IN01/DSIC/GSI/PR, the bodies and entities of the FPA must comply with certain procedures, one of which can be found in Section 5.3, which states that all confidential information can only be stored in a data processing centre provided by the bodies and entities of the FPA, in accordance with the legislation in force. Confidential information is defined as information that is temporarily restricted from public access due to its indispensability for the security of society and the State.
Also, Section 5.2.2.1 of Ordinance No. 9/2018 states that processing of classified information in a cloud computing environment is prohibited. Classified information is defined as confidential information that has been assigned a degree of secrecy in accordance with specific classification procedures set out in applicable legislation.
Also, Section 5.2.2.1 of Ordinance No. 9/2018 states that processing of classified information in a cloud computing environment is prohibited. Classified information is defined as confidential information that has been assigned a degree of secrecy in accordance with specific classification procedures set out in applicable legislation.
Coverage Public sector
Sources
- https://antigo.mctic.gov.br/mctic/export/sites/institucional/legislacao/Arquivos/Anexo_Port_GSI_PR_9_2018_tratamento_Informacao_Nuvem.pdf
- https://web.archive.org/web/20240713082151/https://datasus.saude.gov.br/wp-content/uploads/2019/08/Norma-Complementar-n%C2%BA-09IN01DSICGSIPR.pdf
- https://www.lexology.com/library/detail.aspx?g=980b7a87-a569-499d-b631-88595d8c1927
- https://www.state.gov/reports/2023-investment-climate-statements/brazil/
- https://itif.org/publications/2021/07/19/how-barriers-cross-border-data-flows-are-spreading-globally-what-they-cost/
- https://www.dataguidance.com/notes/brazil-data-transfers
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BRAZIL
Since February 2021, entry into force in July 2021, last amended in January 2024
Since April 2021, entry into force in August 2021, last amended in January 2024
Since April 2021, entry into force in August 2021, last amended in January 2024
Pillar Cross-border data policies |
Indicator Conditional flow regime
Resolution CMN No. 4,893 (Resolução CMN No. 4.893)
Resolution BCB No. 85 (Resolução BCB No. 85)
Resolution BCB No. 85 (Resolução BCB No. 85)
Art. 12 of Resolution CMN No. 4,893 and Art. 12 of Resolution BCB No. 85 state that institutions authorised to operate by the Central Bank of Brazil (Banco Central do Brasil, BCB) may contract cloud and data processing services in Brazil or abroad as long as they adopt corporate governance practices proportionate to the service hired and the risks to which they are exposed to, and verify the capability of the potential service to ensure compliance with the current legislation, institution's access to data, the confidentiality and integrity of data, adherence to certification patterns required by the institution, access to auditing reports, provision of information and management resources appropriate to the monitoring of services provided, identification of the institution's customer data and quality of access controls aimed at protecting customers data. In addition, Art. 15 of both Resolutions establishes that the companies should notify BCB of the countries where financial data is processed. Also, Art. 16 of both Resolutions provides that the contracting of data processing, data storage and cloud computing relevant services provided abroad must fulfil the following requisites:
- The existence of an agreement for the exchange of information between the BCB and the supervisory authorities of the countries where the services may be provided;
- The contracting institution must ensure that the provision of the services does not cause damage to its own functioning, neither do they deter the action of the BCB;
- The contracting institution must define, previously to the contracting, the countries and the regions in each country where the services can be provided and the data can be stored, processed and managed;
- The contracting institution must anticipate alternatives for business continuity, either in the case of the impossibility of continuing the contract or terminating it.
The BCB's prior approval must be obtained if the institution retains a cloud service provider in countries where there is no agreement to exchange information between the BCB and the competent authorities. The institutions must request such approval from the BCB at least 60 days before retaining the cloud services in question.
- The existence of an agreement for the exchange of information between the BCB and the supervisory authorities of the countries where the services may be provided;
- The contracting institution must ensure that the provision of the services does not cause damage to its own functioning, neither do they deter the action of the BCB;
- The contracting institution must define, previously to the contracting, the countries and the regions in each country where the services can be provided and the data can be stored, processed and managed;
- The contracting institution must anticipate alternatives for business continuity, either in the case of the impossibility of continuing the contract or terminating it.
The BCB's prior approval must be obtained if the institution retains a cloud service provider in countries where there is no agreement to exchange information between the BCB and the competent authorities. The institutions must request such approval from the BCB at least 60 days before retaining the cloud services in question.
Coverage Financial sector
Sources
- https://web.archive.org/web/20240826185044/https://www.bcb.gov.br/estabilidadefinanceira/exibenormativo?tipo=Resolu%C3%A7%C3%A3o%20CMN&numero=4893
- https://web.archive.org/web/20230304211840/https://www.bcb.gov.br/estabilidadefinanceira/exibenormativo?tipo=Resolu%C3%A7%C3%A3o%20BCB&numero=85
- https://www.dataguidance.com/notes/brazil-data-transfers
- https://www.dataguidance.com/opinion/brazil-data-protection-financial-sector
- https://read.oecd.org/10.1787/179f718a-en?format=pdf
- https://resourcehub.bakermckenzie.com/en/resources/cloud-compliance-center/latin-america/brazil
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BRAZIL
Since August 2018, entry into force in September 2020
Pillar Cross-border data policies |
Indicator Conditional flow regime
Law No. 13,709 of 14 August 2018 - General Personal Data Protection Law (Lei No. 13.709, de 14 de agosto de 2018 - Lei Geral de Proteção de Dados Pessoais)
The Personal Data Protection Law allows the international transfer of personal data only under certain conditions (Arts. 33-36). The main conditions for such a transfer are that the recipient jurisdiction has an adequate level of data protection; the controller adduces adequate safeguards (for instance, by using model contract clauses, binding corporate rules or other contractual arrangements); the data subject has given their consent explicitly; or the transfer is necessary for the performance of a contract between the data subject and the controller. Art. 11 provides stricter conditions for processing sensitive personal data, and it is reported that, in practice, these conditions forced many organisations to store privacy-sensitive data in Brazil. The law applies extraterritorially to all companies that target Brazilian consumers, even when the company is not established in the Brazilian market.
Coverage Horizontal
Sources
- https://web.archive.org/web/20231224214733/http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2018/lei/l13709.htm
- https://platform.dataguidance.com/sites/default/files/lgpd_translation.pdf
- https://www.dataguidance.com/jurisdiction/brazil
- https://web.archive.org/web/20230327171333/https://idc-a.org/news/industry/Brazils-data-localization-law-spurs-investment-growth-in-data-centers/5b0eadb4-cfb8-49b7-b3a3-be6b49c82e8b
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BRAZIL
Signed in November 2018, entry into force January 2022
Pillar Cross-border data policies |
Indicator Participation in trade agreements committing to open cross-border data flows
Chile-Brazil Bilateral Trade Agreement (Brazil Chile FTA)
Brazil has joined an agreement with binding commitments to open data transfers across borders: the Chile-Brazil Bilateral Trade Agreement (Art. 10.12).
Coverage Horizontal
BRAZIL
Since June 1998
Pillar Intellectual Property Rights (IPRs) |
Indicator Copyright law with clear exceptions
Law No. 9,610 of 1998 - Brazilian Copyright Law (Lei No. 9.610, de 1998 - Lei de Direitos Autorais)
Brazil has a copyright regime under Law 9.610. However, the exceptions do not follow the fair use or fair dealing model, therefore limiting the lawful use of copyrighted works by third parties. Sections 46-48 list the exceptions, which include: the reproduction of news or informative articles published in newspapers or periodicals, mentioning the author's name; speeches delivered at public meetings of any nature; portraits, or any other form of representation of the image, made on commission, when made by the owner of the object ordered, without opposition from the person represented in them or his/her heirs; among others.
Coverage Horizontal
BRAZIL
ITA signatory?
I
II
Pillar Tariffs and trade defence measures applied on ICT goods |
Indicator Effective tariff rate on ICT goods (applied weighted average)
Effective tariff rate to ICT goods (applied weighted average)
9.49%
Coverage rate of zero-tariffs on ICT goods (%)
24.23%
Coverage: ICT goods
Sources
- http://wits.worldbank.org/WITS/
- https://www.wto.org/english/news_e/brief_ita_e.htm#:~:text=ITA%20participants%3A%20Australia%3B%20Bahrain%3B,%3B%20Jordan%3B%20Korea%2C%20Rep.
- https://www.wto.org/english/res_e/booksp_e/ita20years_2017_full_e.pdf
- https://web.archive.org/web/20220120054410/https://trade.ec.europa.eu/doclib/docs/2016/april/tradoc_154430.pdf
- https://www.wto.org/english/tratop_e/inftec_e/itscheds_e.htm
BRAZIL
N/A
Pillar Tariffs and trade defence measures applied on ICT goods |
Indicator Participation in the WTO Information Technology Agreement (ITA) and 2015 expansion (ITA II)
Lack of participation in the Information Technology Agreement (ITA) and in ITA Expansion Agreement (ITA II)
Brazil is not a signatory of the 1996 World Trade Organization (WTO) Information Technology Agreement (ITA) nor the 2015 expansion (ITA II).
Coverage ICT goods
Sources
- https://www.wto.org/english/news_e/brief_ita_e.htm#:~:text=ITA%20participants%3A%20Australia%3B%20Bahrain%3B,%3B%20Jordan%3B%20Korea%2C%20Rep.
- https://www.wto.org/english/res_e/booksp_e/ita20years_2017_full_e.pdf
- https://web.archive.org/web/20220120054410/https://trade.ec.europa.eu/doclib/docs/2016/april/tradoc_154430.pdf
- https://www.wto.org/english/tratop_e/inftec_e/itscheds_e.htm
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BRAZIL
Since December 2007, extended in November 2013 and 2019, until November 2024
Pillar Tariffs and trade defence measures applied on ICT goods |
Indicator Antidumping, countervailing duties, and safeguard measures on ICT goods
Resolution No. 66, dated 11 December 2007 (Resolução No. 66, 11.12.2007)
In December 2007, the Brazilian authorities decided to impose a definitive anti-dumping duty on imports of loudspeakers (HS codes: 8518.2100, 8518.2200 and 8518.2990) from China under Resolution No. 66. This measure was reviewed and extended in November 2013 and subsequently, in November 2019 for a period of five years. The rate of duty is ad valorem 78.3% of the CIF value.
Coverage Product: Loudspeakers (HS Codes 8518.21.00, 8518.22.00, and 8518.29.90)
Country: China
Country: China
Sources
- https://www.gov.br/mdic/pt-br/assuntos/comercio-exterior/defesa-comercial-e-interesse-publico/medidas-em-vigor/medidas-em-vigor
- https://www.gov.br/produtividade-e-comercio-exterior/pt-br/assuntos/comercio-exterior/defesa-comercial-e-interesse-publico/medidas-em-vigor/medidas-em-vigor/alto-falantes
- http://i-tip.wto.org/goods/Forms/TableViewDetails.aspx?mode=modify
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