A few days ago, a Brazilian judge ordered telecoms to block access to WhatsApp on the Brazilian territory for lack of cooperation in a criminal investigation. A few hours later, a superior tribunal invalidated the initial blocking order and reinstated access to Whatsapp. Since the contours of this latest Brazilian Whatsapp affair appeared quite blurry, you may find a full report of the case below.
On December 17, a judge from the 1st criminal court of São Bernardo do Campo in the state of São Paulo ordered all telecoms to block access to Whatsapp, a platform used by more than 100 million Brazilians, on the Brazilian territory for 48 hours. This decision was taken as part of a criminal case that is under secrecy, which makes impossible to know exactly what legal reasoning the judge applied to issue the blocking order. According to the scanty information available, on the day before the blocking, all mobile telecom companies and supposedly other telecoms received a cryptic judicial order to block all access to Whatsapp for 48 hours, counting from midnight. Apparently, there were no precise technical instructions. The blocking was based on the refusal of WhatsApp to provide data that was relevant to an ongoing criminal investigation. Apparently, Facebook, the parent company owning Whatsapp, claimed that Brazilian courts did not have jurisdiction for ordering any data disclosure, being Whatsapp's servers located elsewhere. Presumably, the court considered these arguments unsustainable, according to the most recent case law and, in particular, the Marco Civil da Internet, the most recent Brazilian Internet legislation, which reformed the legal framework governing intermediary liability. In fact, Brazilian courts rejected similar arguments since earlier 2007/2008 Internet cases.
All telecoms complied effectively at midnight. Whatsapp went down. Quickly people began to download Telegram or VPN programs.
In the morning of the following day OI, the largest telecommunications company in Brazil and South America, issued a statement claiming it had filed an Habeas Corpus against the blocking order before the court of appeals of the state of São Paulo. Brazilian commentators speculated that the Habeas Corpus was chosen in lieu of a more specific writ because OI had no knowledge of the basis of the order. Shortly thereafter, the court of appeals issued a statement confirming that the order came from an action under secrecy dealing with organized crime criminal activities, equivalent to those pertaining to the RICO Act in the United States. The appellate court further indicated that a company - presumably Facebook or WhatsApp, although it was not nominally mentioned by the court - had been already ordered twice to give up information and failed to comply, once in July and once in August.
Finally, early in the afternoon of December 17, the court of appeals lifted the blockage. The court decided on OI's Habeas Corpus, confirming that OI did not have to comply with the pristine blocking order, and issued a second decision on a correct writ [Mandado de Segurança] with the same order, but with general effects. As the court noted, although, according to the Marco Civil da Internet, Brazilian courts do have jurisdiction to order data disclosure to companies operating in their territory, the Marco Civil needs to be applied following the Constitution and its own principles, not in a vacuum. Therefore, the Court invalidated the previous decision since it was disproportionate and unnecessary. In particular, it inflicted a considerable harm to users, rather than just the company. According to the appellate court, the inferior court should have applied alternative coercive measures to force the data disclosure, such as imposing fines or possibly jail time on the company's legal representatives for non-compliance, rather than shutting down the whole service.
Brazilian commentators noted that Facebook's position was hardly helpful in fostering the discussion of internet rights in Brazil and belittled the debate that surrounded the Marco Civil da Internet and its perceived achievements. According to Brazilian law, internet hosting providers in Brazil must give up information to judicial authorities, and there are instances in which blocking orders for not compliance might be legitimate. Claiming that national courts lack necessary jurisdiction to order data disclosure because Internet platforms' servers are located elsewhere will hardly convince those courts to surrender national sovereignty, especially if consistent caselaw and legislation state otherwise. Earlier this year, WhatsApp's blockage in the Brazilian territory was already ordered by a judge of the state of Piauí in a case pertaining to the sharing of child pornography but never implemented. Outdated arguments focusing on the servers' location, rather that the effects of the platform's activity on the national territory, seem to have lost their teeth with national courts. According to recent developments, global Internet platforms must necessarily realize that they should strictly abide to national law, if they want to operate in a certain jurisdiction.
Felipe Octaviano Delgado Busnello is a qualified Brazilian attorney active in the field of internet and intellectual property law. He can be reached at felipe.busnello at gmail.com.