Brazil: suspending Telegram is “collective censorship'” and does not help fight crime, say legal experts

By Ana Carolina Curvello

The suspension of Telegram by court order on Wednesday (26) affected millions of people and companies that use the platform in Brazil.

Users reported difficulties accessing the application through social networks and began using VPN services.

The network was suspended after alleged refusal to hand over to the Federal Police data on neo-Nazi virtual groups.

Experts consulted by Gazeta do Povo point out that taking the app off the air does not solve the problem, violates the constitutional principle of freedom of expression, and characterizes “collective censorship.”

“The measure does not solve the problem it seeks to solve and makes the situation even worse, with the possibility of the company suspending its operations in Brazil and the criminals continuing to operate from platforms in other jurisdictions,” says lawyer Giuliano Miotto, president of the Liberty and Justice Institute.

In the assessment of criminal lawyer Luiz Mantovani, executive director of the Brazilian Association of Conservative Jurists (Abrajuc) in Rio de Janeiro, the suspension of the platform violates another principle of Criminal Law: that of the ‘intranscendence’ of the penalty, which says that no sanction should go beyond the person of the convicted.

“In this case, the entire Brazilian population is being penalized and may even generate financial losses for those who use the application for professional issues,” he explains.

Mantovani also mentions that applying a fine to the company would be a sufficient penalty without interrupting the service.

Moreover, he considers that the amount of R$1 million (US$200,000) per day of non-compliance imposed by the judge violates the principle of proportionality.

The constitutional lawyer André Marsiglia, a specialist in censorship and freedom of expression, evaluates the suspension as an “isolated judicial act that does not lead anywhere, nor prevents any crime.”

According to Marsiglia, the applications are like “public squares,” and the very urgency of the Legislative and Judiciary in wanting to regulate them shows their social relevance.

“You can’t suspend or ban a public square because an illicit act has been committed there.”

“The responsibility of the platform is of little importance.”

“By punishing it with suspension or banning, all those who express themselves lawfully are also punished, censored, prevented from continuing to manifest themselves,” explained Marsiglia.

The regulation of social networks mentioned by Marsiglia has been discussed in the Fake News Bill, which should be voted on by the full House of Representatives next Tuesday (2) after the approval of the urgency regime this week.

The issue is a priority for the Luiz Inácio Lula da Silva (PT) government and for the Superior Electoral Court (TSE), presided by Justice Alexandre de Moraes.

Gazeta do Povo tried to contact Telegram, but the company has not yet commented on the court decision.

The suspension of Telegram is valid until the company responds to the requests made by the Federal Police.

FIRST INSTANCE DECISION

The order of suspension came from Judge Wellington Lopes da Silva, of the 1st Federal Court of Linhares, in Espírito Santo.

Because he believed that the company only partially complied with the court order and did not want to cooperate with the ongoing investigation fully, the judge determined a fine of R$1 million in addition to the suspension.

Miotto says that a first-instance judge could never take a measure of this magnitude and scope.

“Brazil is heading towards a serious state of anomie, in which any judge or bureaucrat can, contrary to the law, make decisions that affect millions of people without any subsequent accountability for excesses or abuses of power,” he says.

The publicist lawyer Adriano Soares da Costa agrees that the decision is a disproportionate measure that goes beyond the limits of the competence of the first instance judge.

“The decision of a first instance judge cannot have effects beyond his jurisdiction and the object of the process or police investigation under his competence,” he explains.

Soares da Costa recalls the trials of ADPF 403 and ADI 5527, at the Federal Supreme Court (STF), on the blocking of the WhatsApp application, in which Justices Rosa Weber and Edson Fachin voted for the impossibility of such judicial measures.

He also recalls that “there was a suspension of a similar decision by a first-degree judge, in an injunction granted by Justice Ricardo Lewandowski in ADPF 403”.

In the injunction pointed out by Soares, Lewandowski wrote:

“Now, the suspension of the service of the application WhatsApp, which allows the exchange of instant messages via the World Wide Web, in the comprehensive manner it was determined, seems to me to violate the fundamental precept of freedom of expression indicated here, as well as the governing legislation on the subject.”

“Furthermore, the extension of the blockade to the entire national territory seems, at the very least, disproportionate to the reason that caused it.”

Concerning the fact that the company has not submitted all the data requested by the Federal Police, Soares da Costa explains that “the companies responsible for individual data traffic preserve the privacy of messages as a fundamental principle of their actions”.

Such a measure, according to him, guarantees the “preservation of intimacy and freedom of expression and thought, especially in the face of authoritarian regimes or policies.”

SUSPENDING TELEGRAM IS “COLLECTIVE CENSORSHIP,” SAYS EXPERT

With the suspension of a platform used by more than 40 million Brazilians, according to data from mobile data analysis company App Annie, there is “collective censorship,” according to lawyer Giuliano Miotto.

“The judge made an absurd decision to punish millions of honest people who use the platform daily, consisting of true collective censorship,” he says.

For Soares da Costa, the suspension is “more than censorship”. It means a risk “in limiting freedom of expression through a police power that can invade personal conversations, removing from people the freedom to safely express their thoughts, leaving the citizen under the domination of fear.”

Mantovani also sees the measure as censorship and points out that other laws can hold individuals accountable who exceed in the use of their freedom of expression.

“If someone criminally attributes to another a criminal fact on the Internet, they must answer for slander, swearing, they answer for libel, and we also have Defamation when it offends the good image of the citizen.”

“Interrupting wholly beneficial services only reinforces the theory that the state is still absolutely incapable of dealing with sensitive issues,” he says.

Besides censorship, the specialists fear other risks for Brazil with the adoption of legal measures similar to this Telegram one, such as the weakening of democracy and an insult to the constitutional text regarding the fundamental right of freedom of expression.

“The risk is that we feed even more a jurisprudence that promotes and legitimizes censorship to fight disinformation, fake news, and hate speech.”

“The jurisprudence on freedom of expression in Brazil has become shaky and chaotic since the advent of the STF’s fake news inquiry in 2019.”

“I feel that we have lost the sensitivity to understand that censorship is never justified, no matter the reason,” Marsiglia opined.

With information from Gazeta do Povo