Cláudio de Oliveira Santos Colnago
Faculdade de Direito de Vitória
On February 2015, a Brazilian judge from the state of Piauí issued an order to a large number of Internet Service Providers (ISPs) with a common goal: to suspend the application known as Whatsapp and, therefore, impede its users from communicating through the popular text-messaging app. The preliminary ruling was rapidly suspended on an appeal granted by the local state court, but the fact is that the broad scope of the order raised a lot of doubts regarding how judges in Brazil are to interpret the rules established by the Civil Framework for the Internet, Federal Statute 12.965/2014, known popularly as “Marco Civil”.
Brazil is a pioneer country regarding the approval of a Civil Framework for the Internet, both regarding the content of the statute and the procedure of law-making that resulted on the bill. On the first matter, the legal rules created by “Marco Civil” are very concerned with a practical balance between privacy, freedom of expression and legal stability. Also, the process of law-making that resulted on the statute is a great example for democracy on the age of the Internet: the first draft of the bill was a result of lots of suggestions collected on a website created for this specific reason, with a relevant participation of civil society on the process, ranging from academics to universities and telecom companies, as reported by Ronaldo Lemos.
On the other hand, one must not be naïve to think that Marco Civil’s approval would solve every Internet issue in Brazil. Like any law, “Marco Civil” is open to interpretation and, depending on that values that surround the judges to apply it, it could backfire from a democratic achievement into a tyrannical instrument for censoring speech and broadening chilling effects over speech. Unfortunately, as explained in a previous paper, the discussion regarding freedom of expression in Brazil is already permeated by a growing culture of judicial activism combined with misuses of proportionality and fundamental rights arguments, which weakens one of the most important principles of a democratic state: legal stability.
This is the context in which the before mentioned judicial order has been issued. We must also highlight that such an order was issued in a lawsuit surrounded by secrecy (in an exception to the general rule regarding publicity over judicial proceedings, according to article 93, X of Brazil’s Constitution –
IX – all judgments of the bodies of the Judicial Power shall be public, and all decisions shall be justified, under penalty of nullity, but the law may limit attendance, in given acts, to the interested parties and to their lawyers, or only to the latter, whenever preservation of the right to privacy of the party interested in confidentiality will not harm the right of the public interest to information”
– and was only acknowledged by the general public because it leaked to the general press and to Internet blogs. Another point to be stressed is that, on a press release (?) the judge presiding the case stated that his ruling was based on “Marco Civil” and that the order to suspend all of Whatsapp services was a necessary measure to force the company to comply with previous judicial requisitions of information that were allegedly simply ignored by the provider. Whatsapp has allegedly argued that it would not comply with the order, since it was issued by a Brazilian judge and it is a company located in the USA.
The issue raises a question that has been commonly argued on Internet cases: should a provider located in one country comply with legal rules created on a different country? “Marco Civil” dealt with the matter, stating in article 11 that whenever an operation of collection, storage, retention or treating of personal data takes place in Brazil, the legislation enacted by Brazilian Congress should be applied. Article 11 and its paragraphs also set that these obligations are to be enforced since on of the terminals is placed in Brazil and
“…even if the activities are carried out by a legal entity placed abroad, provided that it offers services to the Brazilian public or at least one member of the same economic group is established in Brazil”.
The criteria adopted by Congress is that whenever a service is offered to the Brazilian public, the rules of “Marco Civil” should apply. One cannot have all the bonuses without some kind of burden.
So, considering that Whastapp was subject to Brazilian law due to the fact that it offers its services in Brazil (through the different app stores available to smartphones), does this mean that its services could have been halted by a judge, or should this be seen as an unreasonable and disproportional restriction to freedom of expression?
“Marco Civil” also laid out some rules regarding the possible consequences of the infringement of the rules of data retention and its availability to public authorities. The infringing company is subject to the following sanctions, that can be applied individually or cumulatively, according to article 12: a) a warning, which must establish a deadline for the adoption of corrective measures; b) a fine, of up to 10% of the gross income of the economic group in Brazil in the last fiscal year (taxes excluded), considering the economic condition of the infractor and the proportionality between the infraction and the penalty, c) the temporary suspension of the activities of collection, storage, retention and treating of personal data or communications data and d) the prohibition to practice such activities of data collection.
Analyzing this set of rules, one thing becomes very clear: there is a notorious restriction degree on the sanctions that can be set against Internet companies that don’t comply with the duties set in “Marco Civil”. Interpreting article 12 according to the Constitution and balancing it with the proportionality principle should lead to the conclusion that the most restrictive sanction (the prohibition to practice the activities of data collection in Brazil, that could very well entail the equivalent of a ban to the application) can only be applied when all the other possible measures have already been tried and turned to be ineffective to reach the proper goal – which is the compliance with the requisition of information retained by the provider. So, under the perspective of proportionality, the cited judicial order goes way beyond the provisions of “Marco Civil”, since there would be other possible measures that could be even more effective for the compliance – for example, the liability of companies that belong to the same economic group (Facebook recently has acquired Whatsapp and the popular social network website clearly states that Whatsapp, Inc. is a related company).
Nevertheless, such a judicial order goes beyond the mere abuse on the interpretation of article 12. Even if it were the case of applying the sanction of prohibition to practice the activities of data collection, one must ask: does this necessarily imply that the application must be suspended by connection providers, whose duty would be to filter content coming from Whatsapp and then block it? Could there be a less intrusive way of enforcing such a prohibition, without blocking the application?
An app is, all things considered, a compilation of code and, therefore, it is an intellectual creation. Therefore, determining one application to be removed is equivalent to issuing an order to confiscate books or newspapers from newsstands and, thus, an act of censorship. Under the Brazilian perspective, such an order would not be easily justified, considering that the 1988 Constitution states that “…the expression of intellectual, artistic, scientific, and communications activities is free, independently of censorship or license” (article 5th, IX). Also, article 220, paragraph 2 establishes that “any and all censorship of a political, ideological and artistic nature is forbidden”. In addition to that, the American Convention for Human Rights (which was incorporated to Brazilian law with a supra-legal status, according to article 5th, paragraph 2nd of the Constitution) allows some kinds of restriction on speech when related to national, racial or religious hatred or any incitement to discrimination, hostility, crime or violence. (art. 13, 5).
Since applications, as intellectual creations, are to be protected under the right of freedom of expression, we must face that only on exceptional cases (such as clear incitement to hate, violence, child pornography, among others kinds of hatred-related speech) it would be reasonable and justifiable to block an application in Brazil. App-blocking for other reasons would be a wrong and disproportionate interpretation of Marco Civil, since this important statute does not give any grounds for generic order of app removal, being limited by the sanctions provided by article 12 – warning, fines, temporary suspension or prohibition on data collection activities.
All things considered, there are two things that Internet companies may learn from the order given by the state judge of Piauí:
- the Brazilian Civil Framework for the Internet (“Marco Civil”) does not allow judges to unreasonably determine the blocking of applications, which could only be a proper order on exceptional cases (the rapid suspension of the order is an example of that) and
- the sole fact that the application servers are not located in Brazil is not a valid argument for avoiding the compliance with Brazilian Judicial authorities’ requests for data: if the company provides services to the public in Brazil, it must also comply with Brazilian law. Otherwise, it may face the sanctions established on Marco Civil’s article 12.
By Cláudio de Oliveira Santos Colnago, Professor of Constitutional Law at Faculdade de Direito de Vitória (FDV), Doctorate candidate and Master on Fundamental Rights and Guarantees (FDV). He is an IACL member and participates in the IACL Research Group “Constitutions in the Age of the Internet”.