Freedom of Speech and the Brazilian Internet Bill of Rights: Three Years of Regulation

On April 24, 2017, the Brazilian Internet Bill of Rights  (Marco Civil da Internet – MCI), Law n. 12.965/14, will complete three years since its enactment. In order to celebrate its anniversary,  this text will briefly describe what was the historical process of Marco Civil da Internet (MCI)’s creation. Next, we will focus on how this law has helped to promote freedom of expression on the internet in Brazil. To accomplish that, we will analyze what articles in the legal text aim to protect freedom of expression. And we will explain two courts’ decisions that used this legal protection in their judgments.

Brazil’s Internet Bill of Rights’s Birth

The idea of a civil law for the internet has started to grow, partially, as a reaction by some parts of civil society and politicians against bills proposed by National Congress that focused on a criminal law enforcement to regulate Brazilian internet. These bills promoted a stronger vigilance by legal authorities on the internet, leading to a lot of criticism by civil society actors. For example, one of the main bills was Law n. 84/99, nicknamed by civil society as “AI-5” in reference to the Institutional Act n. 5 from the military dictatorship, which suspended many constitutional guarantees.

In October 2009, also influenced by the Brazilian Internet Steering Committee’s Principles for the governance and use of the Internet, the Secretariat for Legislative Affairs of the Ministry of Justice, in a partnership with the Law School of the Getúlio Vargas Foundation, launched a project to build a Brazilian Civil Rights Framework for the Internet. One of its objectives was to be open to anyone interested in collaborating to the bill.

In the first phase of the project, an online consultation was made in order to map what were the topics which society thought a future law should have. In the second phase, in 2010, the Secretariat presented a pre-bill based on the topics from the first phase. Also, an online platform was created allowing everyone interested to comment and to discuss the bill’s articles.

After that, in 2011, the Executive Branch elaborates a bill based on the consultations and sent it to the Brazilian National Congress for discussion. Finally, in 2014 the Brazilian Internet Bill of Rights was enacted. One of the main political reasons for the approval were Edward Snowden’s leaks about the U.S. spying on Brazil, which inclined congressmen to approve the law as a kind of response.

Public opinion about the law’s content

After its enactment, Law n. 12.965 was praised by many specialists around the globe since it aimed to establish a bill of rights for internet users through general principles and broad legal protections. Tim Berners-Lee, the creator of the World Wide Web, stated that:

“[…] after a long period of debate and consultation –  you recognized that for the Internet to truly benefit and empower everyone, certain fundamentals must be acknowledged and protected. These include the right to affordable access for all, the right to speak freely online, the right to communicate securely and privately, and the need to ensure that all content is treated equally, with no prioritization, blocking, or censoring. Your country became the first to take the bold step of putting in place a ‘Bill of Rights’ for the Internet – the Marco Civil da Internet. This visionary approach has already had global impacts. From Italy to Nigeria, other countries are seeking to emulate Brazil. And for this, the Internet loves Brazil.”

Freedom of expression in Marco Civil Law of the Internet

The Brazilian Internet Bill of Rights makes direct reference to freedom of expression in 4 out of 32 articles (articles 2, 3, 8 and 19). From a perspective focused on legal principles, the law states that “the discipline of internet use in Brazil”, and “the right to access to the internet” are both based on the freedom of expression principle. Thus, it echoes the guarantee of freedom of expression on the Constitution and on the United Nations’ Universal Declaration of Human Rights, of which Brazil is a signatory.

In addition to the perspective focused on legal principles from the articles cited, the Brazilian Internet Bill of Rights establishes in article 19 the liability of internet application providers. An “internet application” is “a set of features that can be accessed by a terminal connected to the Internet”, article 8, VII, Law n. 12.965. For researcher Marcel Leonardi, this norm is “the most important rule to protect freedom of expression online”, in the Brazilian Internet Bill of Rights.¹

Article 19 states that internet application providers will only face civil liability if they do not obey a specific court order that determines a content removal. This has prevented the adoption of the notice and takedown mechanism, in which the mere request for removal obliges the provider to take down a content. Therefore, article 19 prevents arbitrary removals and censorship, since internet application providers have greater legal certainty about when they must or must not to take down content.²

The discussion between freedom of speech and privacy

As stated above, the Brazilian Internet Bill of Rights clearly emphasizes the promotion of freedom of expression – which, in turn, was heavily impaired in the past, in benefit of other rights, such as the right to privacy, for example.

Individual privacy was always strongly defended in our society. Comparing these rights side by side, it is possible to notice that there is a certain antagonism between both: defending a total right to privacy goes directly against freedom of expression because it implies that there should be no freedom for someone to disseminate any form of information or opinion about another person. Following the same reasoning, this can also be said about the reciprocal: the defense of a total right to freedom of expression conflicts directly with the idea of the defense of every person’s individual privacy, since it results in the defense that any information may be disseminated, even if it violates the privacy of third parties.

Therefore, it is of fundamental importance that the right to privacy is guaranteed in a balanced way with the right to freedom of expression.

In this respect, it is possible to point out another victory by the Brazilian Internet Bill of Rights. In its article 8, it states: “The guarantee of the right to privacy and freedom of expression in communications is a condition for the full exercise of the right of access to the internet”. In this way, by establishing the two rights in a single statement, in a very fortunate way, freedom of expression is guaranteed as a right of equal importance to privacy, and this is proven in concrete cases.

The Marco Civil Law of the Internet and jurisprudence in benefit of freedom of expression

Since the entry into force of the Brazilian Internet Bill of Rights, it has been observed that, in a number of court decisions involving that law, conflicts between privacy and freedom of expression have come to the benefit of the latter, something that was not to be expected in the past.

One can mention, for example, Appeal n. 0008251-57.2012.8.26.0011 of São Paulo’s Court of Appeals (TJ-SP). In that case, former President Fernando Collor asked for the removal of criticisms directed at his person and his actions from a blog. He claimed that those were an invasion of his privacy because someone was widely publishing information, related to his political actions by the time of the post. That information, alongside heavy personal criticism directed to the author of the appeal, according to him, violated his right to privacy and therefore exceeded the limits of the author’s freedom of expression.

The former President’s request was denied. The Court alleged that the criticisms made by Augusto, moderator of the blog against which the appeal was directed, did not exceed the limits of freedom of expression imposed by article 5, IX, of the Constituição Federal. It was also alleged that, based on facts, the information included in Augusto’s criticisms of the former President was considered to be of public interest, due to the fact that he was a person whose actions, as a result of his profession, were very relevant to society.

One can note that, despite not mentioning a specific article of the Marco Civil Law of the Internet, this decision is in terms with the determinations of such Law, since it makes it clear that the right to freedom of expression on the Internet was defended by the judge, which represents an important example of usage of this principle in practice.

Another great case involving the conflict between privacy and freedom of expression occurred in the city of São Paulo. It is the Interlocutory Appeal n. 2034460-86.2017.8.26.0000, also at the TJ-SP. An attempt to assault a residence in the North Zone of the city resulted in the death of one of the invaders by one of the locals. In reporting the incident, several media outlets began to disseminate images of the facade of the residence, and information on the financial situation of the family residing there was mentioned in the articles.

This resulted in legal proceedings in which the family that lived in the house requested that it be prohibited to disseminate more information in regard to the case, because it was putting them at risk, as it could attract more criminals, interested in avenging the death of a companion or attracted by the information that the family had a lot of money.

In this case, the court also favoured the freedom of expression of the media outlets, claiming that the information in the news related to the case was not sufficient to characterize a violation of the family’s privacy, enunciated by article 5, IX, of the Constituição Federal and by article 7, I, of the MCI. In addition to that, again, the Court claimed that the right to freedom of expression and dissemination of the news, granted by article 8, caput, of the MCI, should be considered as of public interest, since the information given by the media was truthful, overlapping the will of the authors.

Notes

1 – LEONARDI, Marciel. “The Fundamental Guarantee of the Right to Privacy and Freedom of Expression in Communications as a Condition to the Full Exercise of the Right of Internet Access”. In: LEITE, George Solomon; LEMOS, Ronaldo. Civil Landmark of the Internet. São Paulo: ATLAS Publishing House. 2014. p. 628.

2 – Leornardi points out that article 19 “does not say – nor could it say – that any removal of content can only take place by court order. This means that each provider remains free to implement the policies they deem relevant for the voluntary removal of content.” This possibility, however, must be balanced with the fundamental guarantee of freedom of expression in order to avoid cases of arbitrary removal by the application provider. For example, in 2015,there was a case of a photo of a brazilian indigenous woman who was removed by Facebook because of nudity.