WILMAP: Brazil

LEGISLATION

[Article 5, items IX, X and XII]
[Relevant Subject Matter: Freedom of Speech, Right to Privacy, Intimacy and Image, Liability for Material and Moral Damages]
 
[Articles18-21 and others]
[Intermediary Liability, Safe-harbor, Data Privacy, Data Retention, Network Neutrality and others]
 
[The law introduces a liability exemption for Internet connection providers and the application of the safe harbor doctrine for other Internet application providers. Article 18 addresses the liability of Internet connection providers, grants an exception to those services regarding intermediary liability. It states that “the Internet connection provider shall not be subject to civil liability for content generated by third party”. Article 19, which addresses Internet application providers (excluding connection providers) states that, “in order to ensure freedom of expression and to prevent censorship, an Internet application provider shall only be subject to civil liability for damages caused by virtue of content generated by third parties if, after specific court order, it does not take action, according to the framework and technical limits of its services and within the time-frame ordered, to make the infringing content unavailable.” For a literal interpretation of the law, neither the responsibility exemption to ICPs nor the safe harbor doctrine to ISPs would apply to criminal liability.]
 
Brazilian Civil Code, Federal Law no. 10.406, January 10, 2002
[Articles 20, 21, 186, 187 and 927]
[Right to Privacy, Reputation and General Civil Liability for Damages]
 
[When the underlying relation does not regard consumer law (see below), the applicable law regarding civil intermediary liability is the Civil Code. This legislation institutes the core principles and provisions of tort law in Brazil. Article 186 provides for a classic Aquilian liability, and states that “he who, by voluntary action or omission, negligence or recklessness, violates rights and harm others, even if exclusively moral damages occur, commits an unlawful act.” Article 187 expands liability and provides legal basis for strict liability, stating that “also commits an unlawful act the holder of a right in which exercise clearly exceeds the limits imposed by their economic or social order, the good faith or morals.” Atricle 927, finally, institutes that “he who, by an unlawful act (arts. 186 e 187), causes damage to another, is obliged to repair it.” It is noteworthy that although there is no doctrine of vicarious liability in Brazil, the provisions on joint strict liability might be used to the same effect. As with civil liability, there is no specific legislation in Brazil regarding criminal intermediary liability. Some crimes, however, either specifically addresses acts of intermediary parties or has such open-ended elements that parties responsible for Internet Service Providers may subject to criminal charges.]
 
Elections Regulation Law, Federal Law no. 9.504, September 30, 1997
[Articles 36, 36-A, 41 §2, 43, 57-A, 57-B, 57-C, 57-D, 57-E, 57-F and 57-I]
[Electoral Propaganda Over the Internet, Free Speech, Censorship, Right of Honor and Image, Right to Respond, Takedown Orders, Access Blocking and Penalties]
 
Brazilian Consumer Defense CodeFederal Law no. 8.078, September 11, 1990 [English version]
[Articles 3, 14, 17 and 43, §2]
[Consumer Relationship, Strict Liability of Product/Service Suppliers and Data Retention]
 
[The Consumer Protection and Defense Code, which application should prevail over the Civil Code by virtue of the principle of lex specialis, defines supplier, on its Section 3, as “any individual or legal entity, either public or private, Brazilian or foreign, as well as depersonalized beings, that develop activities of production, assembly, creation, construction, transformation, importation, exportation, distribution or marketing of products or service provision.” By means of its activities, service providers are considered suppliers by virtue of Brazilian law, thus being regulated by that Code. Article 18 of the Code states that all suppliers involved in the chain of supply are jointly liable to compensate consumers for flaws in products and damages thereof. Hence, ISPs involved in the supply of products may be prosecuted for any vice regarding products in which sale they are involved. Liability in cases of provision of services is regulated by Sections 14 and 20 of the Code. Article 14 addresses liability for suppliers for the provision of services that harm or pose risk to consumers' health or safety, whereas Article 20 addresses general liability for vice on a service. In both provisions only direct liability is instituted. However, courts occasionally overlook the distinction and rule that all suppliers involved in the chain of supply of faulty services are jointly liable, by strict liability, also in such cases.]
 
Statute of Children and Adolescents, Federal Law no. 8.069, 1990
[Article 241-A]
[Child Pornography, Legal guardians, ISPs, Liability, Notice and Take Down]
 
[The crime described in Article 241-A specifies as crime the activity of legal guardians of Internet Service Providers regarding pornography involving children or adolescents, but conditions liability to failure of takedown upon notice: “Article 241-A. Offer, exchange, provide, transmit, distribute, publish or disclose by any means, including by computer or telematic system, photography, video, or other record containing explicit sex scenes or pornography involving a child or adolescent. Penalty - imprisonment of three (3) to six (6) years and a fine. §1 The same penalties apply to those who: I - ensures the means or services for storing pictures, scenes or images referred to in this article; II - secures, by any means, the access by means of a network of computers to photographs, scenes or images of the caput of this article. §2 The behaviors described in sections I and II of §1 of this Article shall be punishable when the legal guardian for the service has been officially notified, but still fails to disable access to the illegal content referred to in this article.” No other crimes specifically address intermediary liability, although they still may occur to Internet Service Providers by virtue of direct liability.]
 
Brazilian Criminal Code, Federal Decree-Law no. 2.848, December 7, 1940
[Article138, 139, 140, 154-A and 359]
[Libel, Defamation, Slander, Online Trespassing, Data Theft and Contempt of Court]
[Article 184]
[Criminal Copyright Infringement]
 
[The Article 184 of the Criminal Code regards violation of copyright, which constitutes as crime making available to the public copyrighted work, by electronic means, without proper authorization. This provision was revised in 2003. “Article 184 . Violate copyright and its related rights. Penalty - imprisonment of three (3) months to one (1) year or a fine. §1 If the violation consists in total or partial reproduction, in order to profit directly or indirectly, by any means or process, of intellectual work, performance or phonogram, without express permission from the author, performer, producer, as appropriate, or whom he represents. Penalty - imprisonment of two (2) to four (4) years and a fine. §2 The same penalty of §1 applies to whom, for the purpose of direct or indirect profit, distributes, sells, offers for sale, rents, introduces the country, acquires, conceals, maintains on deposit, original or copy of intellectual work or phonogram reproduced in violation of copyright law, of the right of the performer or the right of the producer of a phonogram, or rents the original or copy of intellectual work or phonogram, without the express permission from the rights holders or whom he represents. §3 If the violation consists in making available to the public by cable, fiber optic, satellite, waves or any other system that allows the user to select a work or production to receive it at a time and place previously determined by who demands it, in order to profit, directly or indirectly, without express authorization, as appropriate, from the author, performer, producer of a phonogram, or whom represents: Penalty - imprisonment of two (2) to four (4) years and a fine. §4 The provisions of §§1, 2 and 3 shall neither apply in the case of exception or limitation to copyright or that are related in accordance with the provisions of Law No. 9,610, of February 19, 1998, nor in case copying of intellectual work or phonogram, in a single copy for private use of the copyist, with no intention of direct or indirect profit.” Although this provision creates an exception regarding free and fair uses, it does not include any specific safe harbor provision. Hence, it depends on safe harbor provisions constituting such acts as fair use for it to be considered a legal safeguard.]
 
[By this agreement, signed between the Human Rights Secretary and the Brazilian Association of Internet (ABRANET), a non-profit organization that supports the development of the Internet in Brazil. On the second clause of the agreement, ABRANET commits to recommend all its members to include in their terms of service clauses allowing the termination of users accounts whenever the service is used to share child pornography images or to promote any form of discrimination.] 
 

BILLS AND LEGISLATIVE PROPOSALS

Copyright Law Reform Bill, Federal Bill,  Bill nº 3133/2012, 2012
 
[In the current text there is no provision regarding intermediary liability. A few scholars who had access to a draft of the proposed changes to the bill have commented that a system of notice and takedown might be included in a future version of the bill. This system would be very similar to the DMCA, and, as one specific scholar stated, it ignores professor Jerome Reichman's proposal for a reverse notice and takedown regime, for what it has been criticized.]

DECISIONS

[As opposed to common law countries, where published court opinions usually have a binding effect on future cases, Brazil is a civil law based country, meaning that the decisions issued by its several courts have only a persuasive value. Nonetheless, decisions issued by high courts such as the Superior Court tend to create a logical pattern of legal interpretations for lower courts. Nonetheless, it is important to note that, as mentioned above, Brazil has just recently enacted its new Internet Bill of Rights, known as “Marco Civil da Internet”. The new law, which establishes rules on net neutrality, privacy, data retention and intermediary liability, amongst other issues, will become effective on the end of June, 2014, 60 days after its official publication held on April 24, 2014. The decisions quoted below, evidently, were issued based on the so-far-existing legal scenario, without encompassing the principles established by the new, soon to become effective law.]
 

Superior Courts

Supreme Court, Arguição de Descumprimento de Preceito Fundamental 403/2016, July 19, 2016.

First instance courts ordered the suspension of the instant messaging service WhatsApp in four different cases in Brazil, leading to an effective block in three cases. The suspensions (blocking orders directed at ISPs) were determined to force the company to cooperate with law enforcement authorities by handling data about the individuals being criminally investigated.

The circumstances of all the cases are not entirely clear, since some of the decisions and procedures were not public in order to protect the investigation efforts. In the two most recent cases - one in April 2016 (issued in the State of Sergipe) and the other in July 2016 (issue in the State of Rio de Janeiro) -, however, the decisions were eventually made public, exposing that authorities were seeking for a real-time interception of messages sent using WhatsApp. In both cases, the company did not handle the data and informed that the real time interception was impossible due to the use of end-to-end cryptography on the app.

After the April 2016 decision (issued by a judge in the City of Lagarto, State of Sergipe), two lawsuits have been brought before the Brazilian Supreme Court to address the constitutionality of the suspension.

The ADI 5527 (summary here), proposed by the political party named "Partido da República" (PR), claimed that the article 12, III and IV of the Civil Rights Framework for the Internet should be considered unconstitutional. The legal provisions allow the suspension of a service that fail to protect users' personal data and privacy.

The ADPF 403 (summary here) was proposed by the political party named "Partido Popular Socialista" (PPS), requesting the direct declaration of unconstitutionality of sections III and IV of art. 12 of the Brazilian Internet Civil Rights Framework in the light of the fundamental right to freedom of expression (article 5, IX of the Brazilian Constitution) and the lack of proportionality of the order. In the course of this procedure, Justice Ricardo Lewandowski issued an interim order to prevent the suspension of WhatsApp determined by the Rio de Janeiro's judge in July 2016.

Considering the technical issues involved in these two cases, the Supreme Court held a two day public hearing on encryption and the blocking of WhatsApp.

A timeline of all service blocks in Brazil and case materials is available here.

 

Superior Court of Justice, Orkut (Google Brasil Internet LTDA), Special Appeal No. 1512647/MG (2013/0162883-2), May 13, 2015
[copyright, hosting provider, Orkut, user-generated content, linking
 
[The Court ruled that content providers cannot be held liable for copyright violations committed by third parties in a case regarding whether the social networking site Orkut was responsible for copyright infringing user-generated content on its site. The Court ruled that Orkut’s does not profit from copyright infringement on the part of its users. The Court also ruled that Orkut could not be held responsible for links that users post to other pages containing copyright infringing material.] [See also CIS blog post.]
 
Superior Court of Justice, Fourth Panel, Google Brazil v. Dafra, Special Appeal No. 1306157/SP, March 24, 2014
[copyright, video-sharing, YouTube, technical capability, takedown, precise indication of URL
 
[Decision held that the ISP is liable for not acting to takedown all copies of a video (parodying a commercial of the motorbike company Dafra) that was uploaded several times by multiple users, regardless if there was not a precise URL indication of such videos. In particular, the SCJ noted that "(…) this special appeal is limited to the remaining obligation regarding those videos that contain the insulting title, whether they have been precisely appointed by the authors (with the mention of the URL's), or not, so long as they exist on the site with that precise ‘title’, and, after the provider has been formally notified of their existence. […] there is reference about an expert testimony in the case records in which it was verified by the technical feasibility of controlling videos on YouTube, having the Court Expert concluded that such control is not exercised by the ISP due to issues related to convenience and opportunity. […] given the facts of the case, and, considering the precision of the content of the video indicated and the existence of an expert testimony suggesting  that it is possible for the site administrator to conduct searches – (this court) reiterates its understanding that the ISP, even at an injunction stance, must remove the defamatory content generated by its users, regardless of the precise indication of the URL by the offended party."] [See also CIS blog]
 
Superior Electoral Court, Twitter Brazil, Special Electoral Appeal No. 74-64.2012.6.20.0003, September 12, 2013
[electoral propaganda, free speech and intellectual liberty, social network, Twitter, ]
 
[Decision held that Twitter Posts (Tweets) are not to be interpreted as anticipated electoral propaganda, even if the tweets contain electoral content or political opinion (according to Federal Law no. 9.504, electoral propaganda over the Internet is forbidden before July 5th of the year in which the election takes place). In this case, the Court noted “(…) Twitter consists of a conversation between people, and, usually, this communication is restricted to their bonds of friendship and persons authorized by the user." Therefore, "[p]reventing the disclosure of a thought or opinion, even those with electoral content during the constraint-period provided by the electoral law, in a delimited social network like Twitter, is to prevent someone to speak with others. This prohibition implies violation of freedom of thought and speech."]
 
Superior Court of Justice, Third Panel, Google Brazil, Special Appeal No. 1323754/RJ, August 28, 2012
[social network, Orkut, moral damages, personal offense, notice and takedown]
 
[Decision held that the ISP must act expeditiously upon user notification in order to avoid being held jointly liable for offensive/illegal content. The decision suggests that, once communicated by a user that certain content has offensive and/or unlawful material, the ISP must act in 24 hours to momentarily takedown such content, for later analysis. In particular, the Brazilian Supreme Court noted that "[o]nce notified that a certain text or picture has illegal content, the ISP must takedown the content within (twenty four) hours, to avoid the penalty of being held jointly liable with the offender due to omission.  In this 24 hours period, the ISP is not obliged to review the content indicated in the notice, but only to preventively suspend the webpages until it has enough time to assess the veracity of the allegations [ . . . ] Although this procedure may possibly violate the rights of those users whose pages may be improperly suspended, albeit temporarily, this violation of rights must be confronted with the damages arising out of the exposure resulting from the insults, being certain that, when weighing the losses involved, the balance indisputably tilts to the side of protecting the dignity and honor of those users that access the Internet . . . ."]
 
Superior Court of Brazil, Civil, Google Brasil Internet LTDA. vs. Maria da Graça Xuxa Meneghel, Special Appeal No. 1.316.921 - RJ  (2011⁄0307909-6), June 30, 2012
[Civil and Consumer law. Internet. Consumer relations. Applicability of the Consumer Protection and Defense Code. Irrelevance of gratuity of service. Internet search engine. Lack of necessity to prior filtering of the searches. Non-applicability of restrictions to the results. Public content. Right to information.] (Translated from the original by Felipe Busnello)
 
[Maria da Graça Xuxa Meneghel is a famous television show host in Brazil, who has made a notorious career in hosting shows aimed for children, and is widely known by the moniker “raínha dos baixinhos”, which translates to “queen of the little ones”. Prior to becoming famous for her television shows, she played a part in a Brazilian film titled “Amor Estranho Amor” (Love Strange Love). The movie is about the son of a luxurious prostitute (the latter played by the plaintiff), who revisits the brothel where he has met his mother as a 12 years-old teenager, and with whom he has discovered his own sexuality. The movie was somewhat unknown to the general public until references to it and copies of it started went viral on the Internet. Most of the copies had the two scenes in which the character played by Xuxa molests her teenager son deleted, as a result of thorough work by her public relations agents, but some original copies still existed and were circulated on the Internet. Xuxa sued Google Brasil Internet LTDA for the removal of any results that matched her name and the term “pedophile” or any related term, but had been denied her plea in all instances of court.]
 
Superior Court of Brazil, Civil, Google Brasil Internet LTDA, Special Appeal No. 1.186.616 – MG (2010/0051226-3), Agust 31, 2011
[Civil and Consumer law. Internet. Consumer relations. Applicability of the Consumer Protection and Defense Code. Irrelevance of gratuity of service. Internet Content Provider. Lack of duty of prior fiscalization of user generated content. Offensive content warning. Lack of inherent risk to the enterprise. Duty of immediate takedown upon knowledge of infringing material. Duty of identification of every user. Sufficiency of IP number.] (Translated from the original by Felipe Busnello)
 

Lower Courts

Jose Eduardo Tarraf Filho v. Globo Comunicação e Participações S.A. e outro, January 23, 2017
[privacy, right to be forgotten, hosting provider]
 
The Plaintiff requested the removal of a publication available on the defendant’s websites informing about him being kidnapped in 1990. This old piece of information was only recently republished. The judge ruled that it was a mere reproduction of a journalistic case widely divulged at the time of the crime. Additionally, the publication focused on the 30th birthday of the television company and not the Plaintiff's case. Therefore, the Court did not enforce any right to be forgotten.
 
Tribunal of São Paulo, Charles Berbare v. Google Brasil Internet Ltda., January 12, 2017
[privacy, right to be forgotten, hosting provider]
 
The Plaintiff requested the deletion of Google search results indexing old publications about his involvement in a flagrante arrest for alleged unauthorized practice of medicine. As the falsehood of the publication was not proved, the judge ruled that the publicity of the story should not be considered harmful to the Plaintiff’s honour and image. The delisting would have been contrary to the public right to access historical journalistic publications, hence the right to be forgotten has not been enforced. Additionally, the delisting of the search results does not prevent direct access to the origìnal source at the website where it is published.
 
Wilker Aparecido Mendes Fernandes v. Goshme Soluções para Internet Ltda.– ME e Google Brasil Internet Ltda., November 22, 2016
[privacy, right to be forgotten, hosting provider]
 
The Plaintiff requested the suppression of information available on a legal website regarding a labor suit he filed. The website was listed on Google search. The Plaintiff alleged that the labor suit might have been a reason making hard for him to be hired by other companies. The judge considered that the publicity of decisions by the court is based on the principle of transparency. The interest in maintaining case-law registers and the publicity of the decisions shall prevail over the Plaintiff’s interests, once it does not affect his private life, honour, image or other personality rights. Hence, the judge did not apply he right to be forgotten.
 
Gilberto Trama v. Google Brasil Internet Ltda e outras, November 29, 2016
[privacy, right to be forgotten, hosting provider]
 
The Plaintiff sought the delisting of search engines results mentioning his name as one involved with tax crimes committed by a mafia organization. As the Plaintiff did not present any evidence regarding the falsehood of the publications, the judge rejected the request. In this case, the Court noted that the collective and public right to access information should prevail over the individual right to be forgotten.
 
Dulcimar Vilela de Queiroz v. Google Brasil Internet Ltda., June 29, 2015
[privacy, right to be forgotten, hosting provider]
 
The Plaintiff requested Google to remove search results mentioning her earlier criminal conviction. The judge upheld the inviolability of private life and the right to be forgotten, noting that there was no current public interest in the information. In this regard, the court noted that criminal convictions should not continue to produce extrajudicial effects on individual rights after .
 
Maria Helena Jurado Mellilo v. Google Internet Brasil Ltda., April 05, 2016
[privacy, right to be forgotten, hosting provider]
 
The Plaintiff sought the delisting of her artistic name “Meg Mellilo” from the Google search results. The judge stated that the right to be forgotten was not applicable, since the Plaintiff on her own will always related her image to erotism and pornography. During the lawsuit she did not demonstrate to be concern about her privacy, which makes unjustified the request to hide past conducts that are still perfomed at present time.
 
Roberto Borghette de Melo v. Google Brasil Internet Ltda., October 27, 2016
[privacy, right to be forgotten, hosting provider]
 
The Plaintiff was the defendant in a criminal proceeding, in which he was found not guilty. The Plaintiff requested the delisting of this episode from Google search results. The judge stated that Google is a hosting provider, therefore cannot be censored. The judge took also into consideration the public character of the judicial proceeding to deny Plaintiff's right to be forgotten.
 
Supremo Tribunal Federal [State Court of Appeals], Civil, Aliandra v. Orkut, ARE 660861, April 9, 2012
[defamation, hosting provider, online communities, Orkut, notice and take-down]
 
[(1) The Plaintiff, a teacher called Aliandra, was informed by students that Orkut hosted an allegedly defamatory "community" (a discussion forum created by users) called “I hate Aliandra". The teacher claims this community harmed her reputation. She notified Google and request the community to be taken down. Google replied that the content could not amount to defamation and that a court order would be required to take the content down.
 
(2) The Plaintiff filed the lawsuit and requested a) an injunction to take down the community and b) damages to be paid by Google for hosting the content. Her injunction request was denied, so the community remained online. Google presented its defense.
 
(3) Upon trial, the District Court of Minas Gerais (Tribunal de Justiça de Minas Gerais) decided the content was indeed defamatory and ordered the community to be taken down, and also held Google liable for failing to comply with her extrajudicial request before the lawsuit was filed, and ordered the company to pay damages to her.
 
(4) The community was then taken down, and Google filed an appeal that was rejected by the State Court of Appeals.
 
(5) Google filed another appeal, this time to the Supreme Court of Brazil, and the issue was considered important enough to be decided as a "general repercussion" matter, setting a binding precedent. The Supreme Court of Brazil will eventually decide, then, whether an online intermediary that hosts third party content should be held liable for failing to comply with a mere request from an user for content takedown, or if liability can only stem from failure to comply with a court order.
 
(6) Please note, however, that this case was filed before Marco Civil, according to which intermediaries can only be held liable for third party content if they fail to comply with a judicial decision ordering the removal of said content. Up until then, courts usually decided that failure to comply with the extrajudicial request of the plaintiff was already grounds to hold intermediaries liable.]

CONTRIBUTORS

Larissa G. Alfonso
Email: lafonso at stanford.edu
 
Felipe Octaviano Delgado Busnello
Email: felipe.busnello at gmail.com
 
Luiz Felipe Di Sessa
Email: Luiz.Sessa at souzacescon.com.br
 
Diego C. Spinola  
Email: dspinola at stanford.edu

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