Supreme Court of Brazil holds hearings on blocking apps

Is Brazil’s blocking of apps like WhatsApp consistent with the freedom of communication and the rights guaranteed under the Marco Civil da Internet? Today the Supreme Court of Brazil holds the first of two public hearings to consider that question. This consultation will provide arguments for the court’s decision on the issue, which will be critically important for determining the future of free expression in Brazil.

Blocking apps in Brazil

Over the past two years, local or regional judges in Brazil have ordered WhatsApp blocked nationwide three times. In each instance the blocking orders were issued to sanction WhatsApp for failing to turn over user data (the content of encrypted chat messages), but in fact impacted millions of Brazilian citizens, interfering with their right to communicate. Luckily, these broad, disproportionate orders only lasted for up to 72 hours, because in each case the higher courts in Brazil overturned the orders of the lower courts.  

These blocking orders were possible under an interpretation of Article 12 of the Marco Civil, the Brazilian civil rights framework for the internet. Article 12 establishes a series of sanctions for internet services that fail to comply with data protection regulations. These sanctions include warnings, fines, and the temporary suspension of services, but only as an extreme measure. Some judges have taken the provisions in Article 12 to justify action outside of data protection, applying them to issues like failing to comply with a judicial request.

The public hearings on WhatsApp: stakeholders testify

Similar cases regarding the WhatsApp blocking orders have now been brought to the Supreme Court, the final interpreter of Brazil’s constitution and domestic legislation. The court will decide whether the interpretation of Article 12 of the Marco Civil that enabled the blocking is constitutional. Before doing that, the court is holding a hearing today, June 2, and a second hearing on Monday, June 5, to hear the testimony of 23 different stakeholders on this issue, including representatives from civil society, academia, the telecommunications sector, law enforcement, and the internet industry.

What is at stake?

The Supreme Court of Brazil can settle the debate on the interpretation of Article 12. This would provide all stakeholders – including the end users in Brazil  – with legal certainty surrounding the use and enjoyment of communications platforms. We expect the court to uphold the interpretation that every restriction of the freedom of expression must be provided for by law, and that these restrictions must also be necessary to protect an interest recognized under international law. It would follow that blocking applications is an extreme measure, and it should be used only if there are no other less harmful ways to achieve a legitimate aim. It is clear that ordering a block of millions of people as a sanction for non-compliance is both disproportionate and harmful for users.

What’s next? Follow the process!

The court made a wise decision in holding a public hearing on this issue. The best practices for governing the internet include listening to all stakeholders and holding open debates about the decisions that impact them.

We expect a decision from the court in the next few weeks. In the meantime, you can follow the hearings and find recordings of the discussion at the court’s YouTube channel. You can also follow the updates from the civil society groups that will testify at the hearing. They include our friends at Internet Lab, ITS Rio, CTS-FGV, Instituto Beta, and IDEC.

We will also keep you posted. Stay tuned.