ARTICLE 19 condemns the judicial decision handed down on Wednesday 16 December 2015 by the First Criminal Court of São Bernardo do Campo, State of São Paolo, ordering the WhatsApp messaging app service to be blocked for Brazilian users for 48 hours. According to non-official information – as the case is under judicial secrecy – the measure was motivated by the fact that WhatsApp had not provided data for a criminal investigation.
The decision was overturned on Thursday 17 December by Judge Xavier de Souza of the 11th Chamber of the Court of São Paulo, who suspended the blocking of the service. However, while WhatsApp was blocked, “the millions of Brazilians who use and often depend on the app were harmed by a measure that was certainly wrong and clearly disproportionate” said Paula Martins, Director of ARTICLE 19 South America.
“Punishing all users as a way of penalising a single company is an act that oversteps the limits of common sense and underscores the justice system’s narrow-minded vision, since it completely ignored the social consequences of taking such action. In a more extreme comparison, which nonetheless follows the same logic, it would be like cutting off a city’s power supply to punish an energy distribution company”, she added.
Moreover, the judicial decision of the First Criminal Court of São Bernardo do Campo was a patent misrepresentation of the principles of the Brazilian Civil Rights Framework for the Internet, a law governing the use of the Internet in Brazil that has been held up as one of the most advanced of its kind in the world. Article 12 of the Brazilian Civil Rights Framework lists the penalties that can be applied when rules are violated. While the law does indeed provide for a temporary suspension of activities of a particular service (Article 12, paragraph 3), it offers the possibility of issuing warnings or imposing fines before doing so, and these options should have been considered rather than the extreme and disproportionate decision to completely suspend the service.
It is very clear that the order issued by the Court was flawed because it did not interpret the Civil Rights Framework as a whole, but instead placed greater emphasis on the punitive aspect to the detriment of rights protecting Internet users. In this respect, it is extremely important for the Brazilian justice system to make every effort to interpret the law in its entirety – and not in an isolated, piecemeal way – in order to prevent unnecessary constraints on the right to freedom of expression.