ADPF 403 IN STF: ARE WHATSAPP BLOCKINGS CONSTITUTIONAL?
By Paula Pécora de Barros
Four orders for temporary suspension of WhatsApp have already been issued in Brazil. Of these four, three were effectively applied, generating a lot of controversy. After these decisions, two Actions were proposed in the Supreme Federal Court (STF) dealing with the subject: Direct Unconstitutionality Action (ADI) 5527 (see the review here) and Claim of Non-compliance with Basic Precept (ADPF) 403. ADI was proposed by the Partido da República (PR), requesting the direct declaration of unconstitutionality of sections III and IV of art. 12 of the Brazilian Internet Civil Rights Framework, which deals with suspensions and blockades. In turn, ADPF 403, proposed by the Partido Popular Socialista (PPS), is against blocking decisions per se. Below we analyze the main points discussed in the action.
WHY WAS IT PROPOSED?
REQUESTS AT THE ADPF
The ADPF 403 was proposed shortly after the second WhatsApp blockade in Brazil. It was petitioned requesting the suspension of the effects of the decision ordered by Judge Marcel Maia Montalvão of Vara Criminal de Lagarto, which penalized Facebook Brasil for failing to comply with interception orders (see Case analysis here).
The main argument of the PPS is that the blocking decision violates the fundamental precept of freedom of communication (article 5, IX of the Federal Constitution) and proportionality, since a large number of Brazilians use and depend on the application, and have suffered an impact with the blockage. Also, PPS considered the argument of the decision as controversial because the previous decisions that also suspended the application were canceled by their respective Courts of Justice. Based on these arguments, it entered with the ADPF in the STF requesting the suspension of the blockage and the impediment of future suspensions by judicial decision.
ONE MORE BLOCKAGE DECISION
After the PPS proposed the ADPF, another court ruling ordered the application to be blocked. This time, the order originated in the 2nd Criminal Court of Duque de Caxias, and was also a form of punishment for Facebook Brazil’s non-compliance with another order for interception from a judicial decision (see case analysis here).
Afterwards, PPS requested, within the scope of the ADPF already proposed, the suspension of the new blockage. The lawsuit was examined on first preliminary analysis, that is, in summary cognition, by Minister Ricardo Lewandowski, who concluded that the blocking of the application in this case seems to violate the guarantee of freedom of expression and the legislation on the subject, and it is also a disproportionate measure. The question, however, is still far from being solved.
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ORGANISATIONS ENTERED INTO ADPF AS AMICI CURIAE
The question about the constitutionality of WhatsApp blocks is quite fierce. It is not clear whether the WhatsApp blocks are supported, in the abstract and in concrete cases, by the Brazilian legal system. So much, that state and civilian entities have been involved in the ADPF and the judicial processes that led to the blockage to explain their interpretations on this issue.
Five institutions have submitted applications to join the ADPF as amici curiae. They all agree with the plea that there is a breach of the freedom of communication (item IX of Article 5 of the CF) when WhatsApp is blocked and request that ADPF’s asks for suspension of the blockage be upheld. However, there are differences as to their justifications and extent of their requests.
The Federação das Associações das Empresas de Tecnologia da Informação (ASSESPRO) [link in portuguese] characterized the judicial act of blocking as unconstitutional also because it obstructs the free access of all to information (Article 5, XIV) and prohibits the continuity of WhatsApp’s corporate purpose (Article 170 of the CF, sole paragraph, IV), in an even broader way of arguing than the one made by PPS. In the same vein, the Associação Brasileira de Defesa do Consumidor (PROTESTE) [link in portuguese] requests the prevention of any other court decision that may infract those fundamental precepts violated of freedom of expression, communication and privacy and private communication.
The Instituto Beta para Democracia e Internet (IBIDEM) [link in portuguese] and the Laboratório de Pesquisa Direito Privado e Internet da Faculdade de Direito da Universidade de Brasília (LAPIN) looked at the arguments used on the WhatsApp blocking decisions. According to them, the main foundation used to justify blockages would have been art. 461, paragraph 1, of CPC / 73; Only in the third one, from Lagarto, the decision expressly used art. 12, III of the Brazilian Internet Civil Rights Framework. Bringing elements of ADI 5527 (see analysis here), which discusses the constitutionality of this provision, the groups conclude as unnecessary and crooked the declaration of unconstitutionality of the provisions of the Brazilian Internet Civil Rights Framework, since it does not prevent other judicial decisions from being based on other normative precepts to order the blocking or suspension of applications or websites.
The Frente Parlamentar pela Internet Livre e Sem Limite [link in portuguese] goes beyond the question of blockages and asks for a declaration of interpretation according to the Constitution to art. 10 of the Brazilian Internet Civil Rights Framework, caput and paragraph 2, in order to render unconstitutional the interpretation that there would be an unrestricted duty to guard records of access, connection and communication contents. They argue that such duty would amount to infringement of the fundamental rights to intimacy, privacy, confidentiality of communications, and the principle of proportionality. The group then returns to the main discussion of the ADPF: if the continuous and unrestricted custody of the data and content of private communications is understood as necessary, it is requested that art. 12, sections III and IV of the Brazilian Internet Civil Rights Framework be interpreted according to the Constitution, and that STF expressly define such article as not able to ground penalties on companies that fail to file a court order to present data, records or private communications.
The Instituto de Tecnologia e Sociedade (ITS) [link in portuguese] had the same position regarding art. 12. The institution requests that the STF declares as unconstitutional any interpretation made of the sanctions in art. 12 (and not the article itself) that may be grounds for blocking internet services, but that these may only be applied as a way to compel that the applications and sites respect the right to privacy of users. It also called for the sealing of new judicial decisions that determine the general and indefinite blocking of communication services on Internet sites or applications.
On the other side there are the Attorney General’s Office (PGR) [link in portuguese] and the Ministry of Justice and Citizenship [link in portuguese]. The first defends the extinction of the action without resolution of merit, because the decision object has already been suspended and because no act of the public power injurious to fundamental precept was indicated. The second agreed with the PGR, considering the blocking decision proportional to the purposes it aimed at; there would be no violation of freedom of communication.
NEXT STEPS
To date, the ADPF is awaiting the judgment of the rapporteur, Edson Fachin. To form his understanding, the minister has called at the end of October for a public hearing [link in portuguese] to discuss the disputed issues at stake. The minister noted that the controversy between the Brazilian Public Power and WhatsApp goes beyond the alleged violation of freedom of communication by blockings, but it also touches on complex discussions about (i) the technical possibility of intercepting WhatsApp conversations; (ii) the possibility of temporary suspension of WhatsApp activities; (iii) the possibility of WhatsApp collaborating with the judicial decisions based on art. 5, XII of the Constitution.
The hearing will be an open space, in which state bodies, Facebook Brazil, civil entities and experts will be able to present their answers to these questions. The minister agreed to give place and to foster a plural and technical dialogue on the main points that have been discussed in the Action, which will help him formulate his vote on an issue that affects millions of Brazilians.
In a recent dispatch, Edson Fachin and Rosa Werber, rapporteurs for the actions, decided to hold simultaneous the convocation and the public hearing [link in portuguese] 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.