At the start of this month, October 2016, a judge from the electoral court in the south of Brazil ordered Facebook to suspend its services nationwide for 24 hours. This decision has been sent to Anatel, the Brazilian telecoms regulator, but has not yet been complied with. The order required Facebook to identify and remove an anonymous profile page on the grounds that it intended to offend a candidate for local counsellor in Joinville, Santa Catarina. Brazilian electoral legislation prohibits publication of comments that ridicule or are offensive or degrading to candidates. Facebook did not comply with the Order, so the judge decided to impose a fine of R$30,000 (around £8,000) per day until the date of compliance with the original order, in addition to ordering the 24 hour suspension.

This is the latest in a series of fines and suspensions ordered against social networking sites and messaging applications in Brazil.

WhatsApp Cases

Brazilian courts have ordered the suspension of WhatsApp messaging services three times in the past year. The first two suspension orders were issued by two different courts, one in São Paulo (December 2015) and the other in Sergipe in (May 2016), in both cases for WhatsApp’s failure to provide the contents of conversations and users’ personal details as part of investigations into drug trafficking and other criminal offences. WhatsApp claimed that it was unable to comply, as it does not store users’ conversations on its servers. Neither order lasted longer than 48 hours, as Facebook, owner of the messaging service, successfully appealed to the superior courts on the grounds that the impacts of the suspension order were disproportionate.

The most recent blockage was ordered by a Rio de Janeiro court upon a petition from the Civil Police when WhatsApp refused to let them intercept message conversations between alleged members of a criminal gang. The application has an encryption mechanism which secures users’ messages with a lock, and only the recipients and the sender have access to the key required to unlock and read messages. The Police requested the removal of this encryption mechanism, to allow them access to the messages being exchanged. Facebook claimed that this was impossible and appointed an expert to testify that it was technically unable to comply with the order.

Although the court of first instance granted the injunction, it was overturned by superior courts on the same day, on the basis that the decision was disproportionate as it affected all of WhatsApp’s users, and that it was detrimental to rights of free expression granted by the Federal Constitution and underlying the Brazilian Internet law “Marco Civil” of 23 April 2014.

This decision to block WhatsApp also provoked an online backlash and led the hackers group, Anonymous, to block the Rio de Janeiro Courts’ website.

Conflicting principles and proposed changes

These orders for suspension have raised concerns regarding the violation of fundamental rights to freedom of expression, communication and privacy granted by the Brazilian Federal Constitution as well as data protection laws contained in the Marco Civil.

The Brazilian courts have not yet ruled on the extent to which social media and messaging service providers can be forced to allow the authorities access to the private and encrypted content of their users. It is therefore not yet clear how their users’ rights should be reconciled with the demands of Brazilian criminal law and the duties of police authorities. Some authorities have also suggested that Facebook and WhatsApp’s failure to store messages is a breach of the Marco Civil requirement that users’ data should be stored for at least six months.

Due to the uncertainty surrounding these issues and disruption caused by repeated suspension of these services, the Brazilian Minister of Justice recently revealed that the government is studying a bill of law that will avoid these suspensions in future. In connection with this bill, the government is considering requiring companies that provide online communications services to establish Brazilian subsidiaries and to keep records of users’ conversations so they may be provided to the Police upon demand.

Greater certainty regarding the obligations of social media and messaging providers will certainly be appreciated. However, the government may find it difficult to impose strict rules on legitimate service providers, without driving users (and particularly those using these media for illicit ends) to seek alternatives. The balance between civil liberties and public order is a delicate one, which is being reassessed worldwide in the context of new communications technologies and threats to public security, like terrorism and cyber warfare. It is to be hoped that Brazilian regulation in this area does not greatly increase bureaucracy and prejudice competitiveness, nor interfere with the legitimate rights of its online population.