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Brazil's Internet Bill of Rights not to blame for takedown of WhatsApp

It was a tough job to get the Marco Civil da Internet approved. But it seems the work is far from done. Português

HRI

President Dilma Rousseff signs the Marco Civil during opening ceremony of the Global Multi-Sector Meeting on Future of Internet President Dilma Rousseff signs the Marco Civil during opening ceremony of the Global Multi-Sector Meeting on Future of Internet Governance - World NET, 2014. Flickr/ Blog de Planalto. Some rights reserved.In 2014 WhatsApp was the most downloaded app in Brazil. Due to expensive fees for mobile phone-users to send SMS and make calls, instant messaging apps like Whatsapp have been peaking in Brazil’s charts of most-used applications.

WhatsApp became even more popular after allowing its users to record voice messages and then allowing them to make proper phone-calls through this app. One point to keep in mind is that due to high rates of illiteracy - or functional illiteracy - in Brazil, this facility is definitely of great value to many Brazilians. WhatsApp currently has around 100 million users in the country, about half of the entire population. 

Needless to say, this degree of popularity for a US-owned mobile phone app has not come trouble-free from the point of view of Brazilian regulators. The most recent issue arose in December 2015 with the widely publicized suspension of WhatsApp in Brazil for 12 hours. This was not due to a technical failure. It was the result of a court order issued by a judge in São Paulo in response to the allegedly unhelpful position that WhatsApp took to demands for its cooperation in a criminal investigation, one that was being conducted in secrecy by the Brazilian courts.

What this judge was demanding was personal data belonging to an individual WhatsApp user; Facebook, WhatsApp owner, refused to comply with this demand. Instead of using legal avenues to obtain the requested data, the judge ruled that WhatsApp should be taken down, and access to this service denied to not one but every Brazilian citizen using the service.

What does this precipitous decision by a state judge in the Brazilian context mean for the present, and future of human rights for the internet?

Brazil’s Bill of Rights

In 2014 Brazil approved a Federal Law, the Marco Civil da Internet, regarded around the world as a pioneering legislation and christened the Brazilian Internet Bill of Rights. Article 2 of this law states that the foundation of internet governance in Brazil is respect for human rights, including freedom of expression and among other fundamental rights and freedoms, the right to individual development and the exercise of citizenship through digital media, including through social networks.

At the same time, the law recognizes the need to guarantee the protection of privacy and personal data (Article 3).

How to make sense of this court decision to take down WhatsApp in light of these provisions in the Marco Civil? In other words, does a judge have the power, under Brazilian law, to shut down WhatsApp in this way? It seems very clear that the Brazilian Internet Bill of Rights does not provide for this possibility. There are those who disagree, based on their reading of Articles 11 and 12 of the Marco Civil. But we maintain that this sort of conclusion can only lead us to an even greater problem.

From bad to worse

Article 12 of the Marco Civil lays out sanctions for non-compliance with the rules of this Internet Bill of Rights. Included in these sanctions are provisions for a temporary suspension of any activities that involve “acts referred to in Article 11”. And what are these acts exactly? According to Article 11, these could include operations that involve the collection, storage, retention or processing of records, personal data, or communications by internet service providers, including mobile-phone applications that do not comply with Brazilian legal protections of the rights to privacy, protection of personal data, and confidentiality of private communications and records. These sanctions apply when these actions take place on Brazilian territory.

As we can see, Article 12 can lead to the suspension of activities such as collecting, storing or processing personal data; activities that are the most profitable for any website or online service. It is the handling of users’ data that is the core business of internet companies. However, nowhere in the text of the Marco Civil is it written that a whole service can be suspended due to its infringement of any particular terms of service under the law. For commentators to claim that the Brazilian Internet Bill of Rights is responsible for this judge’s decision to suspend WhatsApp for the whole country is, quite simply, a mistake. Basing this decision on the Marco Civil is not in the spirit of this legislation and its basis in international human rights norms.

Whilst the decision to suspend WhatsApp was promptly overturned in the Court of Appeals of the State of São Paulo, the service was not available for 12 hours – a long time for the millions of Brazilian users dependent on this service.

Why are these decisions significant for human rights online?

This is not the first time a popular website or service has become unavailable to the public as a result of a Brazilian court order. One of the most pertinent cases, which also led to the creation of the Marco Civil da Internet happened in 2007 with the temporary takedown of YouTube.

This takedown arose from litigation brought by a Brazilian celebrity who found that intimate scenes had been secretly recorded and uploaded onto YouTube. It was after several unsuccessful attempts to have the video removed from this service that a judge ruled that the whole of YouTube should be taken down instead. As a result, users in some states of Brazil could not access YouTube for several hours, at least not until the same judge withdrew his decision.

It is also important to mention that this is also not the first time that a court order has ordered the takedown of WhatsApp. In the beginning of 2015, a judge from the State of Piauí, in the north-east of the country, decided that this service should be blocked for refusing to cooperate in criminal investigations. The difference in this earlier case was that the decision from Piaui was overturned before it came into force.

And this is not the end of the story. On March 31 this year, the Brazilian Congress unveiled the final report of the so-called “CPI dos Crimes Cibernéticos” (Commission of Inquiry into Cybercrime). The report proposes the adoption of eight new pieces of legislation, some of which will radically alter the letter and the spirit of the Marco Civil da Internet - for the worse.

Not a role model for the rest of the world after all?

This draft of bills in the name of ‘cybersecurity’ runs counter to everything that Brazil and its approach to human rights and the internet has stood for so far. For instance, one of these bills seeks to establish powers to compel social networks and other internet intermediaries to become a sort of ‘Internet police-force’, imposing upon them the obligation to monitor users, and remove any content considered defamatory, and to do so within 48 hours at the risk of being charged with criminal and civil co-liability. Such laws would be a blank cheque for all sorts of online content to be removed at the mere notification of any interested party.

In addition, these proposed bills expand the authority of the Brazilian Federal Police to prosecute any crime that has been committed “against or by means of a computer”. In other words, offences such as libel would be investigated and then enforced directly by the Federal Police.

Finally, these bills would allow courts to be able to block any applications, or websites that might provide access to “illicit” content. Without proper balancing standards, it is clear that such provisions might easily lead to misuse by vested interests in ways that are far removed from the need to combat online child pornography, or to enforce the law in the case of copyright infringements.

To recall, the Marco Civil da Internet, Brazil’s Internet Bill of Rights, is a piece of legislation that was developed over time, and collaboratively. It took seven years for it to become a federal law, the result of lots of negotiation that engaged not only members of the Brazilian congress but also academics, internet companies, telecommunication operators (telcos), and civil society organizations. It is a landmark law because it aims to regulate the internet in Brazil in order to protect its users and their rights, yet also to foster innovation and prevent abuses. Passing this law was only the first step in the long process of crafting adequate Internet regulation in the country. It was a tough job to get it approved. But it seems the work is far from done.

When we think of what “internet freedom” means in terms of human rights online, Brazil has responded with this very strong piece of legislation. It can work because it protects and fosters fundamental rights and freedoms for the internet, such as free speech, privacy and net neutrality.

But making sure that this law is fully complied with by the Government as well as Internet companies, adequately applied by judges, supported by a vigilant civil society, and critically analysed by engaged academics is what comes next if we are to ensure the future survival of the Brazilian Internet Bill of Rights.

About the authors

Carlos Affonso Souza is Director of the Institute for Technology and Society of Rio de Janeiro. He is a professor of Private Law at Rio de Janeiro State University (UERJ) and an Affiliate Fellow at the Information Society Project, Yale Law School.

Sergio Branco is Director of the Institute for Technology and Society of Rio de Janeiro. He is a Professor of Private Law and Intellectual Property Law at IBMEC Law School. He is a former General Attorney of Brazilian Information Technology Institute – ITI and author of several books on Copyright, Law and Technology.

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