Facts

The Facebook page “Hudo Caduco” had humoristic posts with expressions, images and indirect references to the City Hall of Joinville candidate, Udo Döhler. Unconformed, the candidate filed, alongside his Coalition “Juntos no Rumo Certo”, made by the parties PMDB/PSC/PTB/PTdoB/PV/PROS/PCdoB/PTC, with a representation against Facebook with a request for the removal of the page from the social network. Such request was based on the allegations that the page and the posts affected the honor and the image of the candidate, violating the electoral legislation, which forbids offensive, degrading or ridicule propaganda. He further claimed that the profile would be in anonymity, which is sealed by legislation. He asked for the removal of the profile, in injunction character, as well as having his right to reply secured.

Procedural History

The preliminary injunction request was denied, but the request for reconsideration was accepted. Facebook placed an appeal, affirming that the URL object of the removal was not specified and denied that the posts were made anonymously. However, the embargo was rejected. Döhler made a new petition affirming that the company did not comply with the judicial order of injunction and asked for its liability with the suspension of activities for 24 hours. In the assessment of the appeal interposed by the company, the Regional Electoral Court of Santa Catarina removed the blocking sanction. The social network did not get blocked, as it removed the page.

Legal Grounds

When determining the enforcement of a blocking sanction, the judge considered that the profile “Hudo Caduco” had the electoral purpose of damaging Döhler’s campaign. All posts contained in it, humorously referred to the candidate in a way to harm him. Some of the posts attributed to the candidate crimes of racial discrimination and prejudice by Law 7.716/89. Therefore, due to the “offensive character” and of the “clear political purpose of undermining the candidate”, the conduct practised would exceed the freedom of thought secured by the Constitution. The judge quotes as reference to this reasoning paragraph 1 of article 21 of the Resolution 23.457/2015 of the Supreme Electoral Court, according to which “[the] free manifestation of thought of the voter identified on the Internet is only prone to limitation when there is offense to the honor of third parties or the publishing of knowingly untrue facts”.

Furthermore, the judge considered that the profile owner was in absolute anonymity, as there was not his personal identity, which goes against the electoral (article 57-D of Law  9.504/97) and constitutional legislation (article 5, item IV, of the Federal Constitution). He additionally affirmed that Facebook did not nominate the profile owner, but only claimed that they could be identified through the IP by the providers.

Therefore, he confirmed the decision made in urgent injunction ordering the removal of the profile and the enforcement of fine for each day of noncompliance until the end of the electoral campaign. As the elections were still upcoming and the page had not yet been removed, the judge accepted the request of the representative for the application of a temporary suspension sanction provisioned in article 57-I of Law 9.504/97. He then determined that when the sentence had passed through judgement, ANATEL should be officiated to determine to the Internet providers the suspension of the Facebook website, displaying on the network’s blocked page that the suspension happened due to a noncompliance with the electoral law.

Facebook removed the page “Hugo Caduco” from the air and filed an appeal. On October 26th 2016, the blocking sanction was removed by the Regional Electoral Court of Santa Catarina, so the social network was not blocked. As for the grounds for the court’s ruling, it was considered that the provider of multimedia content could not be penalized as a result of an illegal message from its users, since there were adopted measures, though belated, to stop the disclosure of contents. Thus, it dismissed the fine that was imposed on the basis of art. 57-D and 57-F, caput of Law 9,504/97 and the right of reply. Not identifying fraud in the company’s action, the rapporteur, Antônio do Rêgo Monteiro Rocha also dismissed the order to suspend the activities, considering it inadequate and disproportionate, for subjecting users of the network throughout the country to support a restriction arising from a fact of only local repercussion, in conflict with the right of free expression and communication. On the other hand, it maintained the decision that determined the exclusion of the profile and the availability of the data about the person in charge of the profile, as well as the daily fine of R$ 30,000.00 for the undue delay of 20 days in complying with the preliminary injunction for removal of the page.

• Facebook II | Blocking Order
• Facebook II | order do suspend block