non-compliance with judicial requests for content removal
In January 2007, Youtube was temporarily blocked due to an ambiguous injunction issued by a judge from São Paulo, who determined access to certain videos with intimate content of a Brazilian celebrity with her boyfriend be blocked.
BLOCKING ORDER
- Judicial Body
- 4th Chamber of the Court of Justice of the State of São Paulo
- Judge
- Ênio Santarelli Zuliani
- Date of Decision
- September 29th 2006
- Type of Block
- Indefinite period
- Authors of the request
- Renato Aufiero Malzoni Filho and Daniella Cicarelli Lemos
- Case Number
- Interlocutory appeal nº 472.738-4
IMPLEMENTATION
OF THE BLOCK
- Agents
- Backbone providers Telefónica and Brasil Telecom
- Starting date
- January 5th 2007
- Ending date
- January 9th 2007
ORDER LIFTING
THE BLOCK
- Judicial Body
- 4th Chamber of the Court of Justice of the State of São Paul
- Judge
- Ênio Santarelli Zuliani
- Date of Decision
- January 9th 2007
- Case Number
- Interlocutory appeal nº 488.184-4/3
CASE ANALYSIS
Facts
In 2006, the model and TV host Daniella Cicarelli and her boyfriend Renato Aufiero Malzoni Filho were filmed starring in loving scenes in a public beach in Spain, that were subsequently published on the Internet through videos and photos. After the publishing of those images, the claimants filed an advanced injunction against Internet Group do Brasil LTDA., Organizações Globo de Comunicações and Youtube Inc. seeking the suspension of the videos and photos that exposed them.
Procedural History
The claimants had their request for advanced injunction refused by Judge Gustavo Santini Teodoro of the 23rd Capital Civil District, who decided for the permanence of the video on Youtube. The petitioners appealed the decision, which was assigned to the Fourth Chamber of the Court of Justice of the State of São Paulo, in which Appeals Court Judge Ênio Santarelli Zuliani granted the advance injunction. Facing the videos that multiplied online, the plaintiffs requested the blocking of the Youtube website, the request that had been granted. Seven days after the decision, following the implementation of the block by two backbone companies, however, Appeals Court Judge Ênio Santarelli Zuliani issued an order, clearing that he only intended the block of the intimate videos, and not of the whole platform. The blocking of the youtube.com website was then suspended.
Legal Grounds
Judge Gustavo Santini Teodoro of the 23rd Capital Civil District rejected the request for the advanced injunction filed by Daniella Cicarelli and her boyfriend, deciding for the permanence of the video, under the allegation that the plaintiffs did not have the interest to act. For him, the images involved acts practised in public space, not admitting the discussion on privacy or right to intimacy.
The petitioners appealed the decision. The interlocutory appeal was granted by Appeals Court Judge Ênio Santarelli Zuliani of the Fourth Chamber of the Court of Justice of the State of São Paulo in September 2006, deciding for the block of the electronic addresses of the video. The decision was based in the rights of personality, image, privacy, intimacy and honor, that are on articles 220, paragraph 1 and art. 5, paragraph X, of the Federal Constitution and arts. 12 and 21 of the Civil Code, excluding article 5 of the Federal Constitution on freedom of expression. For him, there was no “utility of knowledge” for society on the publishing of the intimacies of the actress and her boyfriend. Lastly, the Judge also removed the affirmation that the claimants did not have the right to prohibit the access to the videos simply because they were in a public location, since the videos constrained and disturbed the lives of the involved.
Even after the decision, the video could still be found on Youtube, since many users continued to upload the content on the platform, even with the removal of the links by the company. With that, the couple once again solicited the adoption of measures that would stop the access to the content, which was again granted by Appeals Court Judge Ênio Santarelli Zuliani on January 2nd 2007, based on article 461, paragraph 5 of the Civil Procedure Code. After this decision, backbone companies were requested to block the website Youtube by Judge Lincon Antônio Andrade Moura.
Due to the great repercussions of the blocking, the Appeals Court Judge determined the unblocking of the website, claiming that there had been a misunderstanding. He denied that it was judicial censoring: “It is believed that the complete interruption of the access signal happened due to technical difficulties of creating a filter that stops the access to the couple’s video. But this was not the determination, since what was ordered was the use of a mechanism that would block the access to electronic addresses that publish the video, whose prohibition was determined by judicial decision”. He also asked for the backbone companies to inform the technical reasons that prevented them from blocking only the addresses with the disputed video, over which the mandatory removal still remained.