[LACNIC/Politicas] CGI.br clarification note regarding blocking of Whatsapp in Brazil

[Carlos Afonso]

CLARIFICATION NOTE in virtue of the decision issued by the Honorable
Judge of the 1st Lower Criminal Court of São Bernardo do Campo, ordering
the suspension of the Internet application “Whatsapp” in the national
territory of Brazil.

17-December-2015

The Brazilian Internet Steering Committee (CGI.br), after taking notice
of some excerpts of the decision issued by the Honorable Judge of the
1st Lower Criminal court of São Bernardo do Campo, ordering fixed and
mobile Internet Service Providers in Brazil to suspend for 48 hours the
access to the domains whatsapp.net and whatsapp.com and the inherent
subdomains by blocking the traffic of any content as well as all IP
addresses related to such domains and subdomains, including by adopting
measures aimed at clearing cache memories related to the latter, among
other measures.

HEREBY

clarifies that Article 12 of Law 12.965/2014 (or simply “Marco Civil”)
only authorizes the temporary suspension of the activities expressly and
exhaustively listed in the caput of article 11 of Marco Civil, i.e., the
collection, storage, retention and treatment of logs, personal data or
communications by Internet access/connection and application providers.
Accordingly, article 12 of Marco Civil cannot be construed as something
that entails the full and unrestricted suspension of all activities of
Internet services and applications providers that operate in Brazil.

Moreover, the Steering Committee takes up this opportunity to reiterate
some of the terms of a clarification note previously adopted by its
board members on March 3, 2015, by which they evaluated a similar
decision adopted by a lower court of the state of Piauí, specially in
relation to the following aspects:

1) Article 12 of Law 12.965/2014 comprises a group of sanctions, namely
warnings, fines, the temporary suspension of activities involving the
acts specified in Article 11 as well as the prohibition of exercising
those same activities. Those sanctions shall be applied gradually and
must be strictly aimed at entities that violate the rules related to the
protection of logs, personal data and private communications.

2) Any action taken against illicit activities on the network must be
aimed at those directly responsible for such activities and not at the
means of access and transport, always upholding the fundamental
principles of freedom, privacy and the respect for human rights
(Resolution CGI.br/Res/2009/03/P);

3) Item VI under Article 3 of Marco Civil restricts the liability of
Internet stakeholders to the specific extent of the activities they
perform; and

4) Article 18 of the same Law states that “the Internet connection
provider shall not be subject to civil liability for damages resulting
from content generated by third parties”.

The members of the board of CGI.br believe that Marco Civil does not
provide any legal ground for the unrestricted suspension of Internet
services and other activities and measures that adversely affect a
diffuse and indiscriminate group of Internet users in Brazil and in
neighboring countries that use the infrastructure and services provided
by Brazilian companies.

Therefore, CGI.br takes note of the efforts entailed by
telecommunications and network providers in the country to cope with the
court order, in full compliance with Brazilian Law, in spite of not
being parties to the respective action; and commends the Honorable
Justice Dr. Xavier de Souza, of the Court of Appeals of the State of São
Paulo, who issued a writ of mandamus to revoke the lower court's
decision, normalizing the operation of Whatsapp in Brazil. His action
realigned the jurisdictional process to the general principle of
non-liability of the network comprised in CGI.br's Decalogue of
Principles for the governance and use of the Internet, which provided
the normative basis for the principles, guarantees, rights and duties
enshrined in the Federal Law 12.965/2014.

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Carlos A. Afonso
Instituto Nupef - https://nupef.org.br
CGI.br - http://cgi.br

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