Legal abuse and misinterpretations of the Brazilian Internet Bill of Rights

Three years after the enactment of the Brazilian Internet Bill of Rights and almost one year since its regulation (Decree No. 8.771 / 2016), it is essential to reflect on the interpretation and application of these devices, whether in the day to day courts or in consumer relations and business of the various agents to whom they concern. After all, the maturity of the understanding about the Brazilian Internet Bill of Rights can provide conclusions about its proportionality, adequacy, or even insufficiency in the Brazilian legislative scenario.

Removal of content requests

Through a preliminary jurisprudential analysis, it is possible to observe that most of the cases involving the application of the Brazilian Internet Bill of Rights in the courts currently concern the responsibility of the application providers and the requests for removal of content provided for in article 19 of that law, Especially in the case of early protection (Paragraph 4).

It turns out that many application providers involved in these actions, such as Facebook and Twitter, seek a delicate balance between maintaining secure and free social networks for their users. Supposedly slanderous, insulting and defamatory posts are subject to removal at the request of persons who have had their objective and subjective honor offended (articles 138, 139 and 140 of the Brazilian Penal Code). However critical and outdated such criminal types may be, if there is an excess in the application of Article 19 of the Brazilian Internet Bill of Rights and removal of such content, such actions may effectively result in a breach of § 2 of the same provision, that is, a threat to the constitutional guarantee freedom of expression online.

For example, in some actions, it is granted early notice of the protection to determine that application providers exclude postings, within a specified period, under penalty of applying a daily fine (whose maximum ceiling is sometimes not even established), as well as the impediment of any post that links its author. Decisions such as these have often been reformed in the second instance, since they require the provider to act as a real censor of the publications that involve the offended, which violates the principles of freedom of expression and the free expression of thought, protected by theBrazilian Internet Bill of Rights and by article 5 of the Brazilian Federal Constitution.

It is the Judiciary that can dictate what violates the right of others and which, for this reason, must be removed from their social networks. It is not the competence of the application provider to decide, in advance, what infringes or not the right of users, except for its terms and conditions of use, which are previously established. In addition, many of these decisions disregard the existence of homonyms in the social network, which makes it practically impossible (and economically unfeasible for these business models) to prior differentiate the content that is related to the aggravated to that which is related to any other person registered in the site with the same name.

Article 19 of the Brazilian Internet Bill of Rights also determines as a basic requirement the need to individualize the content by means of a court order that indicates its URL. The objective is to make the removal of content as objective and punctual as possible, with the object of judicially determined exclusion. Otherwise, there would be legal uncertainty in the generic imposition of the interpretation, by the application providers, of the contents of contents possibly related to the users’ names, which would also be an unjustified obligation. It is unreasonable to determine that any future content (unspecified, but referring to a user) is removed from sites and social networks.

Abuse of personal rights in interpreting the Brazilian Internet Bill of Rights

The abuse of law in the interpretation of the Brazilian Internet Bill of Rights is also a constant in the routine of the courts, especially because of parties and authorities seeking to break the confidentiality of personal data, registration and communication of users online. Regarding this issue, it is worth mentioning a recent ruling by the State Court of Appeals of São Paulo, involving governor Geraldo José Rodrigues Alckmin Filho and the Twitter application provider (Interlocutory Appeal n. 2258514-69.2016.8.26.0000).

In a Precautionary Order, the governor obtained a decision that determined the information, by the application provider, the registration data and IP addresses of a series of Twitter users. According to Geraldo Alckmin, through the publication of personal criticism to him, several users would have exceeded the limits of their freedom of expression online, guaranteed both by Article 5, IV, of the Brazilian Federal Constitution, and by articles from the Brazilian Internet Bill of Rights articles 2 and 8, resulting in damage to the governor’s honor. An abuse of this right of freedom of expression could, in theory, justify the identification of users’ registration data for possible accountability in the courts.

In addition, Geraldo claimed that the comments were made anonymously, made possible by the social network of the application provider. Usernames on Twitter, however, do not constitute anonymity, not least because their registered data involves not only the use of linked email accounts but also their IP address. In order for these data not to be shared abusively and the frequent breach of this secrecy then inhibits its users from using Twitter, deferring measures such as that required by the governor depends on the detailed motivation of the adjudicating body.

In the case in question, many of the messages shared through Twitter were just the sharing of news stories circulated by newspapers, which is not characterized as abusive and therefore does not justify the breach of confidentiality of the cadastral data.

The Sate Court of Appeals partially granted the Interlocutory Appeal, recognizing that several of the posts raised by Alckmin were no more than shares of journalistic reports. Although they contained critical content about the performance of the politician, they did not represent a breach of the right to freedom of expression.

As an abuse of the principle of freedom of expression was not characterized, it was considered unjustifiable to collect data from users of the social network, in compliance with Article 7, I and IV, of the Brazilian Internet Bill of Rights, which determines the inviolability of privacy and (I), and the non-provision of your personal data to third parties, except by express consent or in the cases provided for by law (VII).

Also used was article 22, sole paragraph, of the same law, according to which it is necessary to have minimum indication that the comment or the sharing of information by the user proves unlawful, under penalty of abusiveness of the breach of data confidentiality (I) , In addition to demonstrating that access to such data by the interested party will be useful for investigation or evidentiary instruction (II), and indication of the period to which the records refer (III).

It was noted, however, that this was not the case with all the comments posted by users and cited by the governor as abusive. The Court acknowledged that some postings did, in fact, direct personal offenses to Alckmin, calling him a “thief,” “liar,” “corrupt,” “thief,” among others. With respect to these users, the decision was maintained regarding the collection of account data, as well as the IP addresses of these users.

A slippery slope for interpreting and applying the Brazilian Internet Bill of Rights

The problem related to the curtailment of this right of users is precisely the slippery slope that it represents: a mechanism that relativizes freedom of expression, for example, and gradually opens the doors to a series of new attacks on this right, especially by agents who have, at their disposal, the state and media apparatus, as is the case of the governor of São Paulo. The same logic applies to decisions that determine content removals, or the delivery of communication data between users of the same social network.

Although the Brazilian Internet Bill of Rights has set parameters of application for the magistrate’s decision-making power, many are still unaware of its systematics, objectives, and background to its promulgation, as well as the technical and functional principles by which the network architecture is organized. This gives rise to misinterpretations about the law, disproportionate decisions and that promote effective distortions in online relationships. In this context, it is even more necessary to monitor the decisions and legislative projects that involve this law, for initiatives such as the Observatório do Marco Civil, the Coalizão Direitos na Rede and the Mosaico do Observatório da Internet no Brasil.