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punished for its propagation,”
44
the case was later reinstated, bringing Balthazar back into the realm
of the judiciary. Google finally blocked access to the controversial video in late September 2012
under pressure from Brazilian courts.
45
In March 2013, Balthazar was denied habeas corpus relief (a
writ or legal action requiring that a prisoner be taken before a judge in order to determine whether
his detention is lawful
46
) and the Brazilian Superior Electoral Court upheld the criminal charges
filed against him for failing to comply with an electoral court order.
47
Google maintains that as a
platform it is not responsible for content published by users. Accordingly, the company announced
that it would comply with only 35 of the 316 Brazilian court orders it received from July to
December 2012 requesting the removal of content in violation of the country’s electoral law. In the
remaining 281 cases, Google said that it would “exercise its right of appeal…on the basis that
content is protected by freedom of expression under the Brazilian Constitution.”
48
As of May 2013,
criminal cases against both Coelho and Balthazar were still pending in Brazil.
Social media platforms such as Facebook and Orkut have also been subject to intermediary liability
issues and are the main target of civil liability claims regarding content removal and defamation. In
response to an electoral court order in December 2011, Google removed four Orkut profiles with
content that violated Brazil’s electoral law.
49
State courts in Brazil are still largely divided on the
issue of intermediary liability, however. Some attribute the legal burden to crowdsourcing websites
and social networks; others have adopted a notice-and-takedown approach that imposes liability
only if the intermediary fails to remove content after judicial notice. A Brazilian judge issued a
court order to YouTube for the removal of an anti-Islam video which sparked worldwide
controversy and was blamed for instigating outbursts of violence in multiple countries.
50
Citing fear
of incitement to violence, Judge Gilson Delgado Miranda gave Google YouTube ten days to
remove the trailer for the movie from its website.
51
Nationwide legislation pertaining to takedown
processes has been under debate in Brazil since the Marco Civil Bill, which includes a provision for
the establishment of a judicial notice-and-takedown framework, began gaining media attention in
2009.
The Marco Civil Bill is intended to serve as a “Constitution for the Internet,” guaranteeing freedom
of expression, net neutrality, and the right to privacy.
52
Although previously lauded by Brazilian
44
The Guardian staff and agencies, “Google Executive in Brazil Detained after Failure to Remove YouTube Video,” The Guardian,
September 26, 2012, http://www.guardian.co.uk/technology/2012/sep/27/google‐brazil‐remove‐youtube‐video.
45
Reporters Without Borders, “Content Removal: Call for Quick Adoption of Internet Law Amid Continuing Harassment of
Technical Intermediaries,” October 2, 2012, Reporters Without Borders online, http://bit.ly/SAkmbI.
46
Cornell University Law School, Legal Information Institute, Cornell University, Accessed September 20, 2013,
http://www.law.cornell.edu/wex/habeas_corpus.
47
Paulo Sa Elias, “Contempt of Court,” Paulo Sa Elias, March 21, 2013, http://www.direitodainformatica.com.br/?p=1420.
48
Google Transparency Report, Brazil, Google, Accessed September 27, 2013, http://bit.ly/QIAicO.
49
Brad Haynes, “Google Executive in Brazil Faces Arrest over Elections Law,” Reuters, Sep 25, 2012,
http://www.reuters.com/article/2012/09/26/net‐us‐google‐brazil‐election‐idUSBRE88O18B20120926.
50
Reuters, “Brazil Court Ordered YouTube to Remove Anti‐Islam Film,” Reuters Brazil, September 26, 2012,
http://www.reuters.com/article/2012/09/26/us‐protests‐brazil‐idUSBRE88P05A20120926.
51
Sorcha Pollack, “Google Executive Arrested as Brazil Bans Anti‐Muslim Film,” Time, Newsfeed (blog), September 27, 2012,
http://newsfeed.time.com/2012/09/27/google‐executive‐arrested‐as‐brazil‐bans‐anti‐muslim‐film/; See also:Jenny Barchfield
and Juliana Barbassa, “Fabio Jose Silva Coehlo, Google Exec, Detained by Brazil Police over Refusal to Pull YouTube Clips
Criticizing Politicians,” Huffington Post, September 26, 2012, http://huff.to/OrE52s.
52
Carolina Rossini, “The Brazilian Congress Needs to Pass Marco Civil for Brazilians – and the World,” Infojustice online, May 22,
2013, http://infojustice.org/archives/29726.
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civil society, last-minute changes—including a provision that excludes copyright claims—threaten
the bill’s original promise, leaving users and ISPs in a climate of legal uncertainty.
53
Activists warn
that recent changes could pave the way for the removal of allegedly copyrighted content without a
judicial order. Copyright owners could then sue intermediaries for alleged content infringement by
users, a precedent that could force ISPs to police users themselves. The final language used in the
new exclusionary paragraph of the Marco Civil Bill may also threaten legal certainty surrounding
safe harbors for ISPs.
54
Despite deep concern about these changes, House Representative
Alessandro Molon is optimistic that the Marco Civil Bill will come to vote in the Chamber of
Deputies and be signed into law by the end of 2013.
55
Over the past few years, Brazil has made several important developments regarding access to public
information. The Access to Information initiative, signed into law in November 2011, went into
effect in early 2012 and promises to increase transparency and enhance opportunities for civic
participation, social action, and the exposure of corruption.
56
The enactment of the Access to
Information Act affords citizens the ability to request governmental information via the internet,
while also requiring that state bodies utilize the internet for the disclosure of information about
public administration, projects, and finances, all of which must be presented in an easily accessible
and understandable manner and kept up to date.
57
Brazil is also a founding member of the Open
Government Partnership—a global effort to increase government transparency, efficacy, and
accountability.
58
Brazil’s Action Plan for Open Government includes the adoption of measures that
will allow the country to (1) continue making headway in public transparency, (2) strengthen
access to information, (3) manage public funds, (4) promote integrity in the public and private
sectors, (5) foster citizen participation, and (6) deliver public services.
59
According to a recent
OGP report, to date, Brazil has secured 32 commitments by 5 governmental bodies, 18 of which
have already been completed.
60
Social media is increasingly being used for civic activism in Brazil, with campaigns regarding
indigenous rights,
61
sanitation and water,
62
and the need for reducing electoral campaign waste,
63
53
Carolina Rossini, “New Version of Marco Civil Threatens Freedom of Expression in Brazil,” Electronic Frontier Foundation,
November 9, 2012, https://www.eff.org/deeplinks/2012/11/brazilian‐internet‐bill‐threatens‐freedom‐expression; See also:
Rodrigo Borges Carneiro, “Internet Bill should Not Fail to Include the Respect for Intellectual Property as a Principle,”
Entertainment Law Brazil (blog) April 11th, 2013, http://entertainmentlawbrazil.com.br/2013/04/11/internet‐bill‐should‐not‐
fail‐to‐include‐the‐respect‐for‐intellectual‐property‐as‐a‐principle/#more‐1049.
54
Carolina Rossini, “New Version of Marco Civil Threatens Freedom of Expression in Brazil,” Electronic Frontier Foundation,
November 9, 2012, https://www.eff.org/deeplinks/2012/11/brazilian‐internet‐bill‐threatens‐freedom‐expression.
55
Index on Censorship, “Threats to Online Free Speech are a Civil Society Defeat,” March 27, 2013, http://bit.ly/16XBC5A.
56
Article 19, “Brazil Adopts Access to Information Law,” Article 19, November 22, 2011, http://bit.ly/sCLNZH.
57
United Nations Online Training Centre, “Learner’s Submission: Access to Information in Brazil” UNPAN, February 11, 2013,
http://unpanelearning.wordpress.com/tag/freedom‐of‐information‐act/.
58
http://bit.ly/16laayQ.
59
Open Government Partnership, “Brazil’s Country Commitment to the Open Government Partnership,” Open Partnership.org
September 20, 2011, http://www.opengovpartnership.org/countries/brazil.
60
Open Government Partnership, “Brazil’s Country Commitment to the Open Government Partnership,” Open Partnership.org
September 20, 2011, http://www.opengovpartnership.org/countries/brazil.
61
Sara Moreira, “From Indigenous Protest to Online Preaching, Portuguese Language Countries in 2012,” Global Voices online,
December 31, 2012, http://bit.ly/VTLUKH.
62
Sara Moreira,“Brazil: Rio de Janeiro Demands Better Sanitation,” Global Voices online, November 12, 2012,
http://globalvoicesonline.org/2012/11/12/brazil‐sanitation‐rio‐de‐janeiro/.
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popping up on Twitter and Facebook as people in all regions of the country call the government to
action. In late 2012, the Guarani-Kaiowá, an indigenous community in Mato Grosso do Sul
threatened with eviction from ancestral lands, found support on Facebook and other social media
platforms. In late October and early November, a wave of protests occurred in six Brazilian cities,
as well as in overseas locales as far flung as Germany, Portugal, and the United States. Although it is
difficult to ascertain the impact of the protests, given that the Guarani-Kaiowá also sent a letter to
legislators announcing an intention to fight to the death for their land, a federal judge decided to
suspend their eviction.
64
Various campaigns for environmental rights have also been started on
Twitter, Facebook, and other online forums, with online petitions being used to pressure the
Secretary of State for the Environment to clean up pollution and prevent future sewage spills on
local beaches.
65
The Brazilian constitution forbids anonymity but protects freedom of speech, including cultural and
religious expression. Specific laws also establish freedom of the press.
66
Various cybercrime
initiatives and court rulings made headlines in 2013 for their impact on regulation of computer
intrusion, brand infringement, and discriminatory content. Although the internet is generally
viewed as a freer atmosphere than traditional media, in 2012, 40 percent of the threats received by
journalists and bloggers were related to content posted on personal blogs, websites, and social
networks. This phenomenon emphasizes the multivariate challenges to freedom of expression on
the internet, which concern not only legislation but also physical safety.
67
An increase in retaliatory violence against journalists and bloggers in late 2012, which appears to
bear a clear link to content they posted online, negatively impacts freedom of expression and has
the potential to encourage self-censorship. According to Reporters Without Borders, Brazil is now
one of the world’s five deadliest countries for media personnel.
68
In 2012 and 2013, Brazil was also
witness to instances of local officials bringing defamation suits against bloggers and online
journalists. One blogger faced a prison sentence for a fictional story he posted online.
In recent years, various legislative initiatives have directly affected freedom of expression rights.
The Azeredo Bill (Lei Azeredo, Law #12.735/2012), which pertains to regulation of content
online, was approved in April 2013 after major changes to its original, highly controversial
63
The “Quem Suja Agora” Facebook page was created to monitor and denounce the refusal to collect electoral campaign
waste: https://www.facebook.com/quemsujaagora.
64
Sara Moreira, “From Indigenous Protests to Online Preaching, Portuguese Language Countries in 2012,” Global Voices Online,
November 28, 2012, http://globalvoicesonline.org/2012/11/28/worldwide‐protests‐for‐brazils‐indigenous‐guarani‐kaiowa/; See
also: Huffington Post, “Guarani‐Kaiowa Land Dispute: Brazil Judge Suspends Eviction of Indians,” Huffington Post, October 31,
2012, http://www.huffingtonpost.com/2012/10/31/guarani‐kaiowa‐eviction_n_2051454.html.
65
Sara Moreira, “Brazil: Rio de Janeiro Demands Better Sanitation,” Global Voices Online, November 12, 2012,
http://globalvoicesonline.org/2012/11/12/brazil‐sanitation‐rio‐de‐janeiro/.
66
An English translation of the Constitution is available here: http://www.v‐brazil.com/government/laws/constitution.html.
67
UN Refugee Agency, “Brazil: Serious crimes against free expression in 2012”, Article 19, UNHCR, March 14, 2013
http://www.unhcr.org/refworld/docid/51499abf2.html.
68
Reporters Without Borders, “Brazil,” Reporters Without Borders, July 3, 2013, http://en.rsf.org/report‐brazil,169.html.
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proposal. By the time it was approved, only 6 of the law’s initial 22 articles remained. These items
establish the creation of specialized teams and sectors structured by the judicial police to combat
cybercrimes and to take down racist content (other defamatory content is not directly covered by
the bill). Takedowns require judicial notice, but can be issued before police investigations have
begun.
69
Another initiative currently under consideration in the Senate, Bill 494/08, aims to
impose a series of obligations on ISPs, websites, and blogs to ensure cooperation with the police in
pedophilia investigations.
70
Two recent court decisions have made headlines in regard to their potential to influence the scope
of freedom of expression on the internet. In September 2010, popular newspaper Folha de São
Paulo won an injunction against satirical blog Falha de São Paulo on grounds that the name and
layout of the blog were too similar to that of the newspaper and constituted brand infringement.
The domain Falhadespaulo.com.br was subsequently frozen. In a countersuit in early 2013 in which
the blog owners fought back against the newspaper, a Brazilian court upheld the ruling,
permanently disabling the satirical site.
71
Critics allege that such rulings set a dangerous precedent
for censorship and interfere with diversity of online content while proponents applaud the court for
upholding brand integrity and intellectual property standards.
72
In two separate cases in 2012, legal proceedings were brought against bloggers for alleged
defamation. In the first case, blogger Afrânio Soares was sued by Ipu city council president Carmen
Pinto. If he is found guilty, Soares may be charged with fines of more than $ 12,000.
73
In the
second case, defamation charges were filed against journalist and blogger José Cristian Góes in
December 2012 for a fictional story he posted on his blog Infonet. The charges, which were both
civil and criminal, were initiated by high court judge Edson Ulisses, who claimed that both he and
his brother were defamed in the story, which mocks political corruption in Brazil but does not
name or describe any particular person.
74
In early July 2013, Góes was sentenced to 7 months and
16 days in prison. The sentence has since been commuted to community service. Góes plans to
appeal the ruling
.
75
69
Rafaella Torres, “Aprovação de Leis sobre Crimes Cibernéticos” [Approval of Cybercrime Laws], A2K Brazil (blog) January 17,
2013, http://www.a2kbrasil.org.br/wordpress/2013/01/aprovacao‐de‐leis‐sobre‐crimes‐ciberneticos/.
70
Website of the Brazilian Senate, PLS Senate Bill #494/2008, submitted for review March 24, 2013,
http://www.senado.gov.br/atividade/materia/detalhes.asp?p_cod_mate=88862.
71
Raphael Tsavkko Garcia, “Cries of Censorship as Brazilian Satire Blog Ordered Shut Down,” Global Voices Online, March 22,
2013, http://globalvoicesonline.org/2013/03/22/cries‐of‐censorship‐as‐brazilian‐satire‐blog‐ordered‐shut‐down/.
72
Katrina Kaiser, “Sorry We’re Not Sorry: An Interview with Lino Bocchini of Falha de Sao Paulo,” Electronic Frontiers
Foundation, May 25, 2012, https://www.eff.org/deeplinks/2012/05/sorry‐were‐not‐sorry‐interview‐lino‐bocchini‐falha‐de‐s‐
paulo; See also: Raphael Tsavkko Garcia, “Blog Countersues over Web Domain,” Global Voices Online, May 7, 2012,
http://globalvoicesonline.org/2012/05/07/brazil‐blog‐falha‐countersues‐folha‐sao‐paulo‐web‐domain/.
73
Blog do Kleber Teixeira, “Vereadora entra com Processo contra Bloguiero” [Counselor Enters Blogger Trial], Blog do Kleber
Teixeira (blog), July 15, 2012, http://www.blogdokleberteixeira.com/2012/07/vereadora‐entra‐com‐processo‐contra.html.
74
Isabela Fraga, “Brazilian Prosecutor Files Criminal Charges Against Journalist for Writing Fictional Blog Post,” Knight Center for
Journalism in the Americas, February 15, 2013, https://knightcenter.utexas.edu/blog/00‐12953‐brazilian‐prosecutor‐files‐
criminal‐charges‐against‐journalist‐writing‐fictional‐blog‐; See also: Reporters Without Borders, “Journalist gets ‘Judicially
Insane’ Jail Term for Fictional Short Story,” July 8, 2013, http://bit.ly/12SU1Pr.
75
Rafael Spuldar, “Brazilian Writer Convicted for Fictional Story,” Index on Censorship, July 15, 2013,
http://www.indexoncensorship.org/2013/07/brazilian‐writer‐convicted‐for‐fictional‐story/.
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As mentioned above, several legal provisions, including Article 57-D of the recently revised
electoral law, place restrictions on anonymity. Users are generally required to register with their
real names before purchasing mobile phones or opening a private internet connection, though the
use of pseudonyms in discussion forums is common. Despite the potential for registries to be
employed to punish users for critical online speech, as of May 2013, there were no reports of such
actions, nor were there reports of government efforts to track netizens participating in discussions
critical of the government or particular social or political groups.
Extralegal surveillance of internet activities by the government is not believed to be widespread,
although efforts to collect user data have increased in recent years. In 2012, the Brazilian
government submitted more user data requests to Google than all other Latin American nations
combined. Although there is no public count, most of these requests are believed to be warrants or
court orders likely related to ongoing investigations or lawsuits. In the case of Twitter, most user
information requests were tied to criminal investigations. With the exceptions of an emergency
situation or a legal prohibition related to a specific case, Twitter notifies users of requests for
account information. With a total of 2,777 information requests sent to Google in 2012, and 34
sent to Twitter, Brazil is ranked by both companies as third worldwide in number of requests,
following the United States and Japan.
76
Some lawmakers have pushed for legal provisions requiring the recording of internet
communications from public access points such as LAN houses in order to prevent crime. Such
surveillance, lawmakers say, would also allow LAN houses to avoid liability for acts committed by
users. Legislation of this kind already exists in São Paulo and Rio de Janeiro. A federal measure
pertaining to compulsory registration of LAN users was approved by the House of Representatives
in 2011 and is currently in the Senate, where it has been approved by three commissions and now
awaits a final report.
77
If finalized, the legislation would regulate LAN houses as “multi-purpose
entities of special interest for digital inclusion,” requiring them to register all users.
78
In a disturbing trend, threats, intimidation, and violence against online journalists and bloggers have
been increasing in recent years. In February 2012, Mario Randolfo Marques Lopes, editor-in-chief
of news website Vassouras na Net, was kidnapped and murdered. Marques, who often reported on
police corruption and violence, had previously survived a 2011 assassination attempt that left him in
a coma for three days.
79
In late April 2012, Décio Sá, a longtime political journalist and blogger
who wrote for the newspaper O Estado do Maranhão and ran a blog by the name of Blog do Décio, was
76
Zach Miners, “Twitter Transparency Report Shows Government Data Requests on the Rise,” Good Gear Guide, PC World
Australia, January 28, 2013, http://bit.ly/TNX6Pc; See also: Google, “Transparency Report ‐ Brazil : Summary of Requests,”
Accessed February, 2013, https://www.google.com/transparencyreport/userdatarequests/BR/.
77
Federal Senate of Brazil, Portal Atividade Legislativa, Projeto de Lei da Camara, No 28 de 2011 [Camara Bill, No. 28/2011],
http://www.senado.gov.br/atividade/materia/detalhes.asp?p_cod_mate=100025.
78
Draft Legislation no. 4361/2004, proposed by representative Vieira Reis, accessed February 7, 2012,
http://www.camara.gov.br/proposicoesWeb/fichadetramitacao?idProposicao=268907.
79
Committee to Protect Journalists, “Mario Randolfo Marques Lopes,” February 9, 2012, CPJ online,
http://cpj.org/killed/2012/mario‐randolfo‐marques‐lopes.php.
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Documents you may be interested
Documents you may be interested
