ADI 5527 and appblocks: a problem in the wording of the law or in its interpretation?
By Felipe Mansur
The Brazilian society has faced many decisions that determined the block or even the suspension of applications and websites. Among them are those that led to the suspension of the Whatsapp application, which happened three times, affecting directly, as the press data, 100 million people, the equivalent to 48.91% of the population.
There’s been some attempts in the Judiciary to curb further such decisions. Among them, there is the Claim of Non-compliance with Basic Precept (ADPF) 403 (see the review here), which is still pending in the Supreme Court and seeking a declaration of unconstitutionality of the WhatsApp blocking decisions, because of breach of the right to communication and disproportionate injury to millions of consumers. Another one is the Direct Unconstitutionality Action (ADI) 5527, that instead of discussing the blocking decisions involving WhatsApp itself, challenges the very constitutionality of the Brazilian Internet Civil Rights Framework articles that were being used to support the blocking decisions.
The proposal of these two actions reveals a key issue in the discussion of blocking in Brazil: the problem is what the law says or the way it is being applied? As discussed below, while in the Initial Petition of the ADI 5527 and in some Amici Curiae there is the discussion about the legal text of the Brazilian Internet Civil Rights Framework, there is, in contrast, one Amicus Curiae that seeks to demonstrate that the unconstitutionality is in the application of the Brazilian Internet Civil Rights Framework, which is been made erroneously by the judges, approaching the desired discussion in ADPF 403.
WHAT’S BEEN ARGUED IN THE ADI 5527
In the Initial Petition that originated the ADI 5527, the Party of the Republic (PR) requires the immediate suspension and at the end, the declaration of unconstitutionality of the sections III and IV of the art. 12 of the Law n. 12,965/14 (Brazilian Internet Civil Rights Framework), which provides for sanctions as “suspension” and “ban” to the providers, next to the correct interpretation of the art. 10, paragraph 2, which provides for the provision of message’s content by court order:
Article 10. The ward and availability of the connection and access logs to Internet applications, of which this Act refers to, as well as of personal data and the contents of private communications, must meet the conservation of intimacy, private life, honor and image of the parties directly or indirectly involved.
2nd. The content of private communications may only be provided by court order, in the case and in the manner provided by law, subject to the provisions of items II and III of Article 7.
Article 12. Without prejudice to other civil, criminal or administrative penalties, the violations of the rules laid down in Articles 10 and 11 shall be subject, as appropriate, the following sanctions, applied individually or cumulatively:
III – Temporary suspension of activities involving the acts specified in Article 11.
It can be said that the party sees a certain causal connection between these legal provisions – read in combination, and the blocking orders. They seem to permit the suspension of the activities of Internet messaging exchange services when the company responsible for the application refuses to make available to the judicial authorities the content of private messages sent by users subjected to criminal investigation – or at least give space to an interpretation in this sense, as it occurred in the WhatsApp cases (see case analysis for the third block here and for the fourth block here).
Thus, the PR aims to demonstrate in its action what would be a patent unconstitutionality of the Brazilian Internet Civil Rights Framework. By building their argument, the PR first discusses the nature of Internet applications. Due to the constant use of applications for communication through messages, audio, video and photos, on people’s routine, the authors believe that the constitutionally appropriate interpretation is the one that categorizes the Internet messaging applications like telephone communication, so that the breach of confidentiality can only be authorized by a court order for the purpose of criminal prosecution.
Then, the PR starts to highlight the centrality of messaging applications in everyday life. It is argued that the message exchange applications are a service provided by the private sector, but that should receive state protection because of the society’s interest in the continuity of its activities.
Next, the authors refer to two articles which protect the free communication in the Brazilian law: art. 5, IX of the Charter of the Republic: “the expression of intellectual, artistic, scientific, and communications activities is free, independently of censorship or license;” and Article 13 of the American Convention on Human Rights, which says that the right to freedom of thought and expression includes freedom to “seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.”
Because of that, the authors conclude that the art. 12, III and IV of Law n. 12,965/14, when allowing the temporary suspension and a ban on messaging application services due to noncompliance with court decision of breach of confidentiality, violates the principles of freedom of communication and continuity of service. It must therefore be declared unconstitutional.
In addition to challenging the constitutionality of the legal basis of the blocking decisions, the PR also highlights the impact that they produce to justify their position. First, it argues that the penalties provided for in the art. 12, III and IV of the Law n. 12,965/14, when reaching strangers to the convict facts, violates the principles of insignificance and individualization of punishment. Second, it brings the fact that a large bunch of people enrolled in the Telegram messaging application later to the Whatsapp blocking decisions. For the party, the loss or achievement of users of one or another application was not the result of better or worse quality in providing communication services, but because of exogenous factors to the competitive dynamics of the market. The demand for this product has been dictated by the judiciary acting, not resulting therefore of free competition between economic actors, which is hurting the provisions of Article 170 of the Constitution.
WHAT THE OTHER PARTIES AND THE AMICI CURIAE SAY
In addition to the PR, other figures have also expressed their views on the case of ADI 2257. As in ADPF 403, while also adopting a critical position to the blocking decisions, their opinions have several important nuances to the final result of the judgement.
The ADI 5527 already received expressions of the House of Representatives, the Senate and the Attorney General’s Office. Such entities do not see an unconstitutionality in the Brazilian Internet Civil Rights Framework as a normative act. The AGU and the Senate welcome and cite a statement from the Internet Steering Committee in Brazil to the art. 12, which provides for sanctions for non-compliance records protection regulations, personal data and private communications. Also could not suspend or prohibit – block – the full service; only certain illegal activities. Thus, for the institution, the problem is in the context of law enforcement – in their own blocking decisions already ordered, which have improperly interpreted the Brazilian Internet Civil Rights Framework. Points out, however, that there is no problem in the abstract forecast of suspension of sanctions and ban in Internet providers activities: to declare them unconstitutional is to care to economic interests providers override the fundamental rights of users.
The Beta Institute for Democracy and Internet – IBIDEM, in partnership with researchers at the Research Laboratory, Private Law and Internet of the Law Faculty of the University of Brasilia – LAPIN, was the first organization to join with the Amicus Curiae. Contrary to what was claimed in the Initial Petition, it is requested that the ADI should not be accepted. It was alleged that the Brazilian Internet Civil Rights Framework did not allow the interpretations made by judges in the blocking cases. Also highlighted that there were blocking decisions prior to the Brazilian Internet Civil Rights Framework, or even later decisions but that used the Civil Procedure Code to support the blocking decisions. That is, regardless of the Brazilian Internet Civil Rights Framework, there is the possibility of a court to justify a blocking decision. Thus, they concluded that there would be no violation of the Federal Constitution in the Brazilian Internet Civil Rights Framework, remaining a problem in the sphere of law enforcement, which does not justify the claims of the ADI.
Another institution that joined as an Amicus Curiae is the ITS Rio. The authors adopt a similar position to the AGU: claim that the aforementioned Article 12 sanctions do not allow blocking decision of sites, but only the suspension or prohibition “of activities involving the acts provided in Article 11”, which are “the collection, storage, storage and processing of personal data records or communications.” In other words, the interpretation that this article would authorize the complete block of applications is incorrect and should be declared unconstitutional. Beside this, the institution denies the existence of basis for the suspension bacause of noncompliance with the court order, as it happened with the WhatsApp blocking orders. For the ITS, the sanctions of the art. 12 could only be applied when there was disregard for privacy protection standards and data protection of the arts. 10 and 11. There would only be able to invoke the penalties provided in the art. 12 in the event of any connection, log or access to applications without judicial authorization, for example, but never as a sanction for non-compliance with a court decision.
In its application for the Amicus Curiae, the Parliamentary Front for Free and Unlimited Internet agrees with the thesis that the art. 12 sanctions should be imposed on companies that do not act as judicial decisions is wrong. Then, it argues that art. 12 is inserted in a section of the law that seeks to ensure respect to privacy, honor and the image of users. Following the ITS line, it argues that the sanctions provided in this article would apply only to cases involving acts provided for in art. 11, that is, only when it violates privacy, personal data protection and the confidentiality of private communications.
Leaving a mere discussion of blocking and entering a discussion of the constitutionality of data guard duties, the Front also refutes the interpretation of art. 10 in the sense that it would force the companies providing virtual applications to store all data, connection logs and content. The group argues that the Federal Constitution provides to keep confidential the various modes of communication made between private persons, in order to prevent the State or other individuals to have free access to information pertaining to the private sphere of citizens, which would be absolutely contrary to the democratic order, in addition to harm the companies due to large costs to store all this data.
NEXT STEPS
As expected, the trial of ADPF 403 impacted on the analysis of the ADI 5527, since the discussion of the constitutionality of the Whatsapp blocking orders (on the agenda in ADPF) also raises the central question of ADI: how the sanctions of “suspension” and “prohibition” in the Brazilian Internet Civil Rights Framework should be interpreted.
Therefore ,in a recent dispatch, Edson Fachin and Rosa Werber, rapporteurs for the actions, decided to hold simultaneous the convocation and the public hearing for ADI 5527 and ADPF 403. They made that decision aiming to create a space as shared and collegiate as possible, in accordance with articles 21, XVII, and 154, III, of the Internal Regulation of the STF.