16/06/2016

Cludio de Oliveira Santos Colnago: The Brazilian Civil Framework for the Internet and the issue of app removal | Blog of the IACL, AIDC

Blog of the IACL, AIDC

a network of constitutionalists from countries throughout the world

Cludio de Oliveira Santos Colnago: The Brazilian

Civil Framework for the Internet and the issue of
appremoval
The new IACL blog welcomes contributions from individual members of the
Association. (To join, see here). The author of this blog post, Cludio de Oliveira
Santos Colnago, is Professor of Constitutional Law at Faculdade de Direito de Vitria
(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.
On February 2015, a Brazilian judge from the state of Piau 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 rst 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 rst draft of the bill was a result of lots of
suggestions collected on a website created for this specic 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 nave to think that Marco Civils 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 backre 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

https://iacl-aidc-blog.org/2015/03/10/claudio-de-oliveira-santos-colnago-the-brazilian-civil-framework-for-the-internet-and-the-issue-of-app-removal/

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Cludio de Oliveira Santos Colnago: The Brazilian Civil Framework for the Internet and the issue of app removal | Blog of the IACL, AIDC

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 Brazils Constitution
IX all judgments of the bodies of the Judicial Power shall be public, and all decisions shall be
justied, 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 condentiality 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 ne, of up to 10%
of the gross income of the economic group in Brazil in the last scal 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.

https://iacl-aidc-blog.org/2015/03/10/claudio-de-oliveira-santos-colnago-the-brazilian-civil-framework-for-the-internet-and-the-issue-of-app-removal/

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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 dont 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 lter 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 conscate
books or newspapers from newsstands and, thus, an act of censorship. Under the Brazilian perspective,
such an order would not be easily justied, considering that the 1988 Constitution states that the
expression of intellectual, artistic, scientic, 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 justiable 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, nes, 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 Piau:
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 Civils article 12.
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This entry was posted on March 10, 2015 by iaclaidc in IACL research group, Internet, National
constitutions and tagged Brazil, internet.
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