Facts

The Secret application allowed users to post “secrets”, like short comments, “anonymously”, that is, without immediate identification of the author. After cases of cyberbullying and due to the polemic on the app’s intents, a Public Civil Action was filed by the State of Espírito Santo Public Attorney’s Office against Apple Computer Brasil Ltda., Google Brasil Internet Ltda. and Microsoft Informática Ltda., with the request of urgent injunction for the sentencing forcing them to remove the Secret app (by the first two companies) and of the similar application Cryptic (by the third requested) of their official stores, as well as the remote removal of the application from the smartphones of users who had already installed it.

For the Public Attorney’s Office, the disponibilization of Secret would be “unconstitutional twice: a) one as it violates the intimacy, the honor and the image, fundamental rights constitutionally enforced; b) two as the proceedings that propagate such violation are used with (and effectively propitiate) anonymity”. Therefore, it would be in disagreement with the constitutional norms the protect the freedom of expression, but prohib the anonymity and guarantee the protection of honor and intimacy and the right to reply (article 5, items IV, V and X) and with infralegal that have the same intention to protect virtual damage (articles 3, 7 and 8 of the Brazilian Internet Civil Rights Framework). The requests were also based on article 12 of the Law of Public Civil Action (Law nº7.347/85) and article 84 and 94 of the Code of Consumer Protection (Law nº 8.078/90).

Procedural History

After the filing of the Civil Public Action, the question was analysed by Judge Paulo Cesar de Carvalho of the 5th Civil Court of Vitória, that proceeded with the requests. He demanded the removal of the applications from the official stores and of the smartphones in which the apps were already installed.

Complying with the decision, Apple removed Secret from the App Store and Microsoft removed Cryptic from their app store, but Google kept Secret on the Play Store.

The decision of removal suffered an appeal from Google through the Interlocutory Appeal 0030918-28.2014.8.08.0024. Microsoft also appealed through Interlocutory Appeal 0031238-78.2014.8.08.0024. The appeals were analysed by Appeals Court Judge Jorge Henrique Valle dos Santos, that suspended the effects of the preliminary injunction of removal on September 10th 2014, but judged the merit definitely. As Apple did not appeal the preliminary injunction decision, its effects continue to be valid for its online store.

On September 24th 2014, Secret Inc. was summoned to take part in the process by Judge Claudio Ferreira de Souza. With that, the company filed an Interlocutory Appeal in face of the judicial decision that determined in preliminary injunction the removal of the applications from the online stores.

The Interlocutory Appeals nºs 0030918-28.2014.8.08.0024, 0031238-78.2014.8.08.0024 and 0035186-28.2014.8.08.0024 interposed by the different defendants were analysed together. After the discussions between judges of the Court of Justice of the State of Espírito Santo, the appeals were granted provision, suspending the preliminary injunction.

Legal Grounds

On the first judicial decision of the case, which granted preliminary injunction provisioning to the requests by the Public Attorney’s Office and granted the request for removal of the applications Secret and Cryptic from the virtual stores and devices, judge Paulo Cesar de Carvalho argued that the apps had great offensive potential with the sharing of photos and phrases in an anonymous way. Although the Federal Constitution protects the freedom of expression, it forbids anonymity, in article 5, item IV, a rule that was violated, making impossible, or much harder, the chances of a person offended by the posts to gain an indemnity for moral or material damage by violation of the right to privacy, honor and image of people, protected by article 5, item X, of the Constitution.

When judging the interlocutory appeals interposed by Google and Microsoft, Appeals Court Judge Jorge Henrique Valle dos Santos argued that, in spite of the anonymity of the posts on the application, it was still possible to identify the authors through their IP addresses. Aside from that, he understood that the removal of the application from the users’ smartphones constituted an invasion of informatic device made without the authorization of its owner, which would be a crime by Law nº12.737/12. Furthermore, he emphasized that the definitive removal of the applications would only be possible with the conduction of proceedings in the USA, where the servers and sources of the programs are. This is the report of the specialized press on the decision, which is unavailable to the public.

Lastly, when assessing the interlocutory appeal interposed by Secret Inc., the Court Of Justice of The State of Espírito Santo decided, by majority, for the revoking of the preliminary order for the removal of the application from the virtual stores.

Appeals Court Judge rapporteur Robson Luiz Albanez argued that, although anonymity is the main point of the application, there are no doubts of the possibility of identifying the user from their IP address, based on the Brazilian Internet Civil Rights Framework (article 15). He also affirmed that, by article 19 of this law, the liability of the application providers by practises of third parties can only be done if they do not take actions to exclude the content object of judicial order. Furthermore, he considered that the mere removal of the application would not be effective, once it would still not avoid that people use that people used the resources available on the Internet for the committing of offenses, like through fake profiles in other platforms. Moreover, he pointed to the technical unavailability and the violation of privacy of users when considering the decision for the removal of the applications in the devices they were already installed.

Appeals Court Judge Ronaldo Gonçalves de Sousa followed the rapporteur’s vote in the sense of not verifying the completion of the necessary requirements for the advance of the original injunction that justified the preliminary injunction of removal. He considered that there was no need for the unequivocal evidence of likelihood of the allegations as for the anonymity or not of the users of Secret and Cryptic. For him, the constitutional seal to anonymity would apply  to the cases in which such status is used for illicit means, in a way to derail the liability of the author. He defended, therefore, that the anonymity should not be considered an abuse by itself, it should be analysed in the concrete case in face of the rights to which it counterposes. Additionally, he did not identify a founded concern of irreparable damage or of difficult compensation to the collectiveness, the quantity of users that used the application for illicit means not being significative, considering the measure excessively drastic to repress practices also propitiated by other applications and platforms.

However, Appeals Court Judge Samuel Meira Brasil Júnior disagreed. On the issue of the existence of absolute anonymity and the alleged violation of the application to this prohibition on article 5, item IV of the Federal Constitution, he said to be indispensable the production of evidence, necessary to make the decision of the maintenance or suspension of the preliminary injunction, since while on three interposed appeals the defendants argued to be possible that the users were identified, the Public Attorney’s Office of Espírito Santo claimed its impossibility. As his suggestion was denied by the rapporteur, he partially altered his positioning. He understood that the production of evidence would be of greater pertinence in a later stage, differently from the current phase of evaluation and granting of injunction. Nonetheless, he understood that there was significant evidence of the presence of the requirements for the advance injunction, voting for the maintenance of the preliminary injunction decision of removal of the application. His vote was, however, suppressed by the two above.

Outcome

On April 2015, the creators of Secret decided to end it 16 months after its placing on the market. With this closure, on May 9th 2016 the process was extinct for absence of the conditions of the action.

• Secret | Blocking Order
• Secret | Order to Suspend Block