Digital revolution is a global phenomenon, and even thought its roots remain in the developed world, developing countries are surely the stage for an unprecedented rapid diffusion of digital technologies. Online freedom, recently declared by the UN as a human right, alongside with the promotion and protection of rights on the Internet represent an indispensable leverage for the achievement of Sustainable Development. This paper aims to analyse to which extent the newly promulgated Brazilian Civil Rights Framework for the Internet and its judicial application are emcompassed with the most recent international recommendations over online rights.
I. Introduction - II. The promulgation of the Civil Rights Framework for the Internet - III. The innovations of the legal framework - IV. The Whatsapp cases - V. Conclusion
Digital revolution is a global phenomenon, and even thought it has its roots in the developed world, developing countries are surely the stage for an unprecedented rapid diffusion of digital technologies. The Human Rights Council of the UN General Assembly has expressly recognized that the spread of information and communications technology and global interconnectedness has great potential to accelerate human progress, to bridge the digital divide and to develop knowledge societies. (1)
Furthermore, the promotion and protection of rights on the Internet represent an indispensable leverage for the achievement of Sustainable Development. It has been established as an objective by the UN Agenda for Sustainable Development(2) that in order to build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation, it is necessary to significantly increase access to information and communications technology and strive to provide universal and affordable access to internet in least developed countries by 2020.
Brazil is not an exception to this rule. It is the fourth country in the world in terms of internet users (around 140 thousand users, just behind China, India and the U.S. respectively) and this number has grown 5% in the last year. Still, it represents only 66% of its population.(3)
This huge potential demands also an adequate legal framework able to ensure rights on the internet to be granted and preserved. In this sense, Brazil has been the stage of recent and innovative legislation over internet rights with the implementation of the so called Marco Civil da Internet (Civil Rights Framework for the Internet: Federal Law n. 12.965 of 2014), seen throughout the world as an example to follow. Nonetheless, few years after the promulgation of this bill of rights, important debate is rising over the application and effectiveness of its content.
In order to address some of the most important topics in debate, this paper will focus in the historical background of the internet regulation in Brazil, its application in the recent cases of judicial block of internet services regarding the communication service provider, Whatsapp, and the new-found ruling of the Federal Supreme Court over this topic.
II. The promulgation of the Civil Rights Framework for the Internet
Brazil, as stated above, has a huge potential for digital inclusion. Nonetheless, as it also happens in most of the developing countries, the social and economic imbalanced backgrounds in addition to the lack of consistent normative framework give place to a number of internet-based misconducts.
The country is rated second in worldwide online and financial malware banking frauds(4) and has reported an increase of 197% of cyber attacks and 40% of banking frauds in 2014.(5) The elevated rates of cybercrime are commonly related to the increase of e-commerce and mobile banking. The costs of stolen data in 2013 are estimated around U$4,5 billion and since 2012, around U$ 3,75 billions have been hacked from online payment invoices, representing 495.000 transactions involving more then30 banks and 192.000 victims.(6)
The fact that so many people are affected by cybercrimes in Brazil is not astonishing when you realize that more than half of the 200 million inhabitants are connected to internet, approximately half of the bank transactions are digital and there is 130 electronic bank machines for every 100.000 adults (a higher density than U.K, France or Germany according to the World Bank).(7) Moreover, two other aspects contribute to this scenario: cybercrime legislation is very faulty and investigation bodies lack resources.
The Cyber Crimes Act was enacted in 2012, known as Caroline Dieckmann Act, in response to the case relating the theft of intimate content of the referred actress' mobile phone. The legislation defined as penal misconduct the invasion of digital devices (hacking), even though many considered the penalties as too soft and faulty. While the American cybercrime legislation prescripts convictions of up to 10 years and heavy fines, the Brazilian legislation prescript detention from 3 months to one year and it didn't deal with all the other aspects concerning the rights on internet.
From 2012 on, many groups from public sector, civil society and entrepreneurs started a debate over internet governance and neutrality. This efforts culminated in the creation of a Bill of Internet Rights, that was send to the Congress and started the debates over the Marco Civil da Internet - MCI (Civil Rights Framework for the Internet).
The debates and the approval of the MCI were intensified in 2013 after WikiLeaks published a series of institutional emails of the Brazilian government in which were exposed many cases of public entities involved with suspicious internet services providers. The Federal Police Department, for instance, hired the services of an Italian malware surveillance company, further involved in hacking scandals with foreign governments. Specially, the scandal arose from the leaks bringing into public that U.S. was carrying espionage over Brazilian president at the time, Dilma Roussef. As political tension urged for response, the Congress urgently approved the Civil Rights Framework for the Internet, praising for net neutrality, servers responsibility, data protection and freedom of expression.
III.The innovations of the legal framework
The approval of the MIC in 2014 brought into light a whole new framework and, obviously, its applicability was still in question. The innovations were surely relevant in the pursuant of the fundamental right to information, expressly mentioning the freedom of content and freedom of access. Relevant specific provisions were also made over the following topics:
Regarding Responsible Service Providers, it was established that providers are not responsible for removal, except when a court order has been issued, and subsidiary responsible for third-party content in specific cases.
There are clear provisions in terms of online privacy establishing users' rights to privacy and protection of personal data. Information about collection, storage, processing and protection must be explicit.
The law clearly mentions that access to the internet is a condition for guaranteeing basic civil right and as a responsibility of the state, propitiating conditions for progress in the area of digital inclusion, aiming to reduce inequalities in access to and use of information technologies, especially between the different regions of the country.
Net neutrality is dealt as a guarantee and equal treatment of data packets (no discrimination based on content, origin and destination, service, terminal or application). Although net neutrality is being respected in fixed internet plans, 3G and 4G band services in Brazil currently apply the so-called "zero-rating" practice for access to popular services such as WhatsApp, Facebook and Twitter. (8)
Regarding the expansion of e-government services, the involvement of citizens in the creation of laws and public policies via online consultation and participation mechanisms are also expressly mentioned.
At last, it is important to mention the ongoing debates over the topics of dangerous inaction and right to be forgotten.
IV. The Whatsapp Cases
Undoubtedly the innovations brought by the internet bill of rights constitute a necessary legal and political step to set the framework of Internet use in Brazil, nonetheless, recent judicial application of the new legislation have raised the debate over its effectiveness and how to conceal the many rights addressed by.
On may of 2016, a State Judge from the small town of Lagarto in the northeast State of Sergipe, issued an order(9) determining major telecommunication operators to block the instant message services of Whatsapp nationwide for 72 hours. The decision was due to the noncompliance of Whatsapp towards a disclosure order of messages between subjects investigated under organized crime and drug trafficking charges(10) in the town of Lagarto.
Amongst the precedents of the block order were the facts that the application did not comply with the disclosure order once the fines were established in R$50.000,00 (approximately U$15.000,00) daily, later on increased to one million reais and also not fulfilled.
The application company did not complied with the disclosure orders even after the arrestment, on march of 2016, of the vice-president in Latin America of the social media Facebook, Diego Jorge Dzodan. Released a day after by an Habeas Corpus, the appeal court ruled that the arresting was illegal, and the company discussed the (im)possibility of disclosure of encrytipted data.
In addition the Federal Police had already required the suspension of the application presenting documents and arguments over the technical possibility of interception of the messages. Furthermore, the State Prosecutors have delivered a judicial opinion in favor of the order requested.
Regarding the block order, the State Judge affirmed the precautionary measure was based in the articles 11 , 12, 13 and 15, caput, paragraph 4 of the Internet Bill of Rights,(11) and established a daily fine of five hundred thousand reais (approximately one hundred and fifty thousand dollars) for the telecom companies that breached the order.
After the judicial order, the company issued a public note stating that the referred decision punished more than a hundred million Brazilians: "After cooperating in all the extension of our capacity with Brazilian courts, we are disappointed with the fact that a judge from Sergipe decided once more to order the block of Whatsapp in Brazil. This decision punishes more than a hundred thousand of Brazilians that rely on our services to communicate, manage their business and much more, to force us to hand out information that we repeatedly affirmed not to posses".
Following the case, a procedure was instated in the National Justice Supervision to investigate a possible functional misconduct by the judge of Lagarto/SE and a political party initiated a procedure in the Supreme Federal Courts aiming to declare the unconstitutionality of the provisions in the Internet Bill of Rights that allowed the suspension of services as a sanction.
The State Court criminal investigation case is currently under secrecy, and no final decision has been prolated.
It is to be highlighted that it was not the first time similar judicial orders have been issued. In February of 2015 a judge from the State Courts of Teresina issued a block order due to the noncompliance of Whatsapp with pedophilia investigations. The order was shortly revoked by the Appeal Courts though, ruling the lack of reasonableness in the order, once the suspension due to a local investigation ended up affection millions of people nationwide.
Further on, in December of 2015 a judge from the State Courts of São Paulo, also determined the block of the application due to criminal investigations noncompliance. The order was also revoked less than 48 hours after by the 11th Criminal Chamber of the Appeal Courts.
National Justice Supervisor and Supreme Court
Regarding the functional misconduct investigations, the National Justice Supervisor, minister Nancy Andrighi recently decided for the discharge of any misconducts by the State Judge from Lagarto. In her reasoning, the minister highlights the noncompliance background of the case and that the judge "acted in defense of the dignity of the jurisdiction"(12). She also points the fact that the company's legal information are only available in foreign language (English), what evidences the lack of compliance with national laws by Whatsapp and the evidences of a purposeful noncompliance behavior in order to maintain the advertisements over the company's position as market leader in personal communication protection.
In other hand, the procedure(13) initiated in the Supreme Federal Court by the political party, Partido da República, aims the declaration of the unconstitutionality of the provisions of suspension sanction over instant internet message services. According to the article:(14)
"Art. 12: Without disregard to other applicable sanctions, civil, criminal or administrative, the offenses to the rules listed on the articles 10 and 11 are subject, accordingly to the case, to the following sanctions, applicable isolated or cumulated:
III - temporary suspension of the activities involved in the article 11;
IV - prohibition of the exercise of the activities that involve the acts listed in art. 11;"
The petitioners claim that the sanctions applied to the servers cannot reach the users other than those involved with the object of the sanction, taking into account that such measure arbitrarily jeopardizes the right to communication of the citizens, and the principles of the free initiative, free market and proportionality.
It is perceivable by the content of the two cases that reached the High Courts that there are multiple rights and principles at stake. Therefore, the Supreme Court decided on the 2nd of December of 2016 to call for a public consultation in order to gather expert information and public opinion over a number of technical aspects of the instant messages services, and then be able to rule over the declaration of unconstitutionality and also present adequate information for posterior regulation if it is understood that the legislation is constitutional.
Whatever is the decision the Supreme Court shall adopt, it is very positive to rely on a participative and inclusive decision making process, engaging the stakeholder through the use of internet itself and balancing and ensuring all the rights prescribed in the Internet Bill of Rights.
The Brazilian Civil Rights Framework for the Internet has been object of significant international attention as an innovative legislation predicated on ensuring individuals’ rights regarding the Internet. Surely a necessary legal and political step to set the framework of Internet use in Brazil by reaffirming that access and use of the Internet are necessarily shaped by freedom of expression and privacy, aligned with the most recent recommendations of the United Nations.(15)
Nonetheless, the judicial cases analyzed evidence that in order to grant an effective safeguard of the rights brought by the new legislation, these rules have to be applicable in accordance with the complex Brazilian systems of laws and policies, the upcoming regulations, the interpretations and enforcement by judiciary and other authorities.
In this sense, considering how dynamic the internet environment is, further regulations (containing the necessary technical and political specifications)(16) built through a democratic and participative process, are essential to grant legal certainty and to mark judicial activity. More than that, essential to foster an inclusive informational society.(17)
The positive example of the public consultation to be held by the Supreme Court over the Whatsapp case demonstrates, in a pioneering and innovative way, that Brazil is indeed using the possibilities brought by the Internet Bill of Rights to enhance the foundations of indispensable institutions for an advanced democratic model.
(1) UN, General Assembly: Resolution adopted by the Human Rights Council on 1 July 2016 for the promotion, protection and enjoyment of human rights on the Internet. (A/HRC/RES/32/13)
(2) UN, Transforming Our World: The 2030 Agenda For Sustainable Development. Un.Org (A/Res/70/1)
(3) See Internet Live Stats (http://www.internetlivestats.com/)
(4) Kaspersky LAB Report: Financial Cyberthreats 2014. (https://securelist.com/files/2015//KSN_Financial_Threats_Report_2014_eng.pdf)
(5) See at: http://diariodocomercio.com.br/noticia.php?tit=numero_de_ataques_ciberneticos_cresceu_197&id=157314
(6) See at: https://blogs.rsa.com/rsa-uncovers-boleto-fraud-ring-brazil/
(7) Global Partnership for Financial inclusion. See at: http://datatopics.worldbank.org/g20fidata/country/united-kingdom
(8) See at: https://www.article19.org/resources.php/resource/38175/en/country-report:-brazil's-marco-civil-da-internet: Imminent possibility of Facebook rolling out its Internet.org initiative; Internet.org permits access to a limited number of services, which are filtered by the platform before being made available, excluding even high resolution images and video traffic. Strictly speaking, the practice of data packet discrimination, inherent in zero-rating practices and Internet.org, is illegal. However, there is a need for a deeper analysis of these practices, which are defended by the private sector and should be dealt with appropriately by the regulations.
(9)Block order files accessible in original language at: http://www.migalhas.com.br/arquivos/2016/6/art20160601-04.pdf
(10)State Courts of Sergipe. Process number: 0007674-14.2015.8.25.0040 Accessible at: http://www.tjse.jus.br/portal/consultas/consulta-processual
(11)Regarding the mentioned articles of the Civil Rights Framework for the Internet: article 11 deals with data protection; article 12 deals with the criminal responsibility of servers; article 13 regards the data storage; 15, caput, § 4, dealing with the sanctions over data storage responsible.
(12)Article accessible at: http://www.migalhas.com.br/Quentes/17,MI243886,31047-Juiz+de+SE+nao+cometeu+abuso+ao+bloquear+WhatsApp+decide+Nancy
(13)Direct Declaration of Unconstitutionality procedure n. 5.527. Accessible at: http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp?incidente=4983282
(14)Article 12 of the Internet Bill of Rights. Free translation. Original content accessible at: http://www.planalto.gov.br/ccivil_03/_ato2011-2014/2014/lei/l12965.htm
(15)Due to the lack of access and suppressive tactics by certain governments, the United Nations (U.N.) has declared that “online freedom” is a "human right," and one that must be protected. This was in the form of resolution A/HRC/32/L.20. In July 2016 the U.N. issued a declaration, cementing this view. The resolution predicts the importance of "applying a comprehensive human rights-based approach when providing and expanding access to the internet and for the internet to be open, accessible and nurtured".
(16)Regulation is necessary for the correct application of rules contained in the Civil Rights Framework for the Internet because some articles of the Act make explicit remission to regulation, such as the exceptions to net neutrality or security procedures that companies must embrace when dealing with the user’s data. These themes, therefore, must be regulated.
(17)The Strengths And Weaknesses Of The Brazilian Internet Bill Of Rights. Rossini, C.; Brito Cruz, F. and Doneda, D. Published by the Centre for International Governance Innovation and the Royal Institute of International Affairs. London, 2015. Available at: https://www.cigionline.org/sites/default/files/no19_0.pdf