Regulamentação dos serviços over the top e a neutralidade de rede: um estudo sobre o atual panorama

Abstract

The objective of this study is to obtain an overview of current legislation in Brazil and to verify if there is a tendency to regulate the new services that use Internet such as an application platform, the Over The Top (OTT) services, besides verifying the legality in the differentiation of data transmission using access information of net users. The research has a descriptive and explanatory character, as it aims to characterize, describe and determine the current situation of OTT services and related laws, besides analyzing, evaluating, verifying and explaining the current scenario. The study aimed to verify the possibility of regulating OTT companies respecting the privacy of users' data and net neutrality. The principle of net neutrality must be respected in Brazil, according to Presidential Decree No. 8,771, dated May 11, 2016, which regulated the Civil Internet Landmark (Law No. 12,965, April 23, 2014). The data packets that travel in the network must be treated with isonomy and there is no possibility of discrimination or traffic degradation. The registration of connection and access data of users should be protected and only disclosed after court order. Juridical authors point out that it is necessary to create specific regulations for OTTs so that competition becomes again isonomic, since the absence of taxes in OTT services causes a regulatory asymmetry between OTTs and regulated services. The tendency is for OTT providers to be taxable as there is similarity between some services listed in the ISS law and Netflix and WhatsApp services. It is essential that there is regulatory equality between the services already regulated and the OTT services. One way to achieve such isonomy is the possible deregulation of large operators. Thus, animosity in the industry will cease and will open space for alliances and partnerships that will benefit all.