Online Rights Coalition Declaration – Brazil

Imagine one day you wake up and there is no more Internet in your country. The media are disconnected, no services, the production system is stopped. You can communicate only with your phone. You do not know what is going on in the world. This catastrophic apocalyptic film scenario is far from fiction and affects millions of people every year around the world.

Internet shutdowns are multiplying and affecting millions of people every year around the world

Since 2015, 151 Internet shutdowns have been recorded in more than 35 countries. One of the longest in history was in Cameroon, where from January to April 2017, the English-speaking region of the country was totally disconnected from the Internet, after the authorities literally cut the submarine cable that connects the country to the international bandwidth.

In India, 54 shutdowns were recorded in less than two years. Such blackouts are usually ordered by the government or the court, on the basis of various excuses: ensuring public safety, preventing the spread of illegal content, and allowing academic examinations, when they are not simply described as technical errors or sabotage by others.

But what many activists in the world, including members of Internet Without Borders, have demonstrated is that these shutdowns take place in contexts of political instability, to contain protests, and during an election period, in order to limit communications and control the population.

During these periods of shutdowns, cases of human rights violations do multiply, it is a recurring phenomenon. Often, blackouts are not as severe as in Cameroon or India. Short blackouts, focusing on a particular region or service, have equally harmful effects on communication networks but cause less public mobilization, and in some cases can be equated with technical problems.

The #KeepItOn global campaign, coordinated by 143 organizations in 60 countries, defines an Internet shutdown/blackout as follows:

An Internet shutdown is an intentional disruption of the Internet or electronic communications, rendering them inaccessible or effectively unusable, for a specific population or within a location, often to exert control over the flow of information

In Brazil, WhatsApp blockings were abusive and disproportionate:

In Brazil, the cases of Internet disruption are essentially court-ordered shutdowns of messaging applications. The phenomenon has intensified in recent years. In 2015 and 2016, four court decisions were issued to block the WhatsApp app and put pressure on the multinational Facebook (the service owner) so to provide encrypted user data as part of a criminal investigation. Three of four rulings of justices have been executed, which amounts to a suspension of service of approximately 40 hours.

Based on a misinterpretation of the « Marco Civil da Internet », the charter of fundamental rights on the Internet adopted in 2014 by Brazil, certain trial judges have made a disproportionate decision, violating a basic principle of this charter and sacrificing the communications of a hundred million Internet user.

The article 12 of the « Marco Civil da Internet » provides the possibility to “temporarily suspend the activities” of an application in the content layer only if it does not properly protect user data. The text also stresses, in its article 9, that blocking is prohibited in the infrastructure layer, except in cases of emergency or the need to meet technical requirements essential to the adequate provision of services.

The blocking of the messaging application requires an intervention in the infrastructure layer of the Internet, carried out by the telecom operators. Although they have no legal power (Article 9), they have complied with the judicial decision without denouncing its illegality. Due to the network structure on the continent, the blocking of Whatsapp also had impacts Brazil’s neighboring countries, with cases reported in Argentina, Chile, and Uruguay.

It is important to point out that the blocking of applications and the disconnections from the Internet have serious consequences on the economy, involving not only the suppliers whose services are blocked but also the operators and especially the companies and individuals using the services in their activities. According to a Brookings Institution study, between 2015 and 2016, global Internet blackouts had cost the global economy $ 2.4 billion a year. In Brazil, the blocking of Whatsapp alone cost $ 116 million, making the country the fifth largest, in terms of losses, in the world despite the small number of such cases.

Fake news, elections, and political instability can favor shutdowns

Brazil is not Cameroon. If we consider its level of reasonable connectivity, the dependence of its national economy on the Internet, the type of blackouts that have occurred so far and the relative vitality of public opinion, compared with authoritarian countries, the risk of a general Internet shutdown, like what has recently been going on in Cameroon, is not so high. Yet, the instabilities of the current conjuncture impose on us a lot of precaution.

On the other hand, the year 2018 presents at least three characteristics favorable to blockages, which push us to remain vigilant:

• An electoral process where the social networks will have a crucial role compared to the preceding elections,
• A highly unstable political and social situation with radicalization and escalation of clashes in the public debat,
• Public authorities that have legislated disproportionate and repressive cyberattacks on honor and freedom of expression.

Examples of repressive initiatives aimed at blocking or deleting content in an arbitrary manner have not been lacking in recent years. We can mention, the bill (PL 215/2015), which provides for harsher penalties for crimes against honor, committed on social networks. Also the report of the parliamentary committee investigating cybercrimes, presented in May 2016, which recommended modifying the “Marco Civil da Internet” in favor of blocking applications or sites if they engage in cybercrime, copyright infringement or piracy. At the end of 2017, in view of the 2018 electoral process, the Brazilian Congress tried to approve a measure of censorship of content disseminating “false information or disfavoring the image of parties, coalitions, and candidates” on social networks. Fortunately, massive mobilization forced the President to step back and veto the amendment.

But the repression around so-called “fake news” does not stop there: since the end of 2017, a working group has been created at the Superior Electoral Court (TSE) with the participation of the armed forces, the Federal Police, and the Public Prosecutor’s Office. This initiative is still in the works phase but will tend to increase the control of speech and judicialize the production of information, which can become a serious threat to the right to information of Brazilian voters.

A study from the North American University Dartmouth has shown that the phenomenon of “fake news,” which ignited the concerns of leaders after Donald Trump’s victory at the White House in 2016, had a limited impact in shaping voters’ opinion. The phenomenon remains to be analyzed in more detail, but it is necessary to question the intentions of the public authorities behind this hunt for fake news in a regional context where misinformation is practiced with impunity by so-called “trusted media”.

A global condemnation is necessary

The phenomenon of disruptions and shutdowns of the Internet is increasingly denounced thanks to the mobilization of the international public opinion. On the American continent, the practice has been condemned by the American Convention on Human Rights since 1969 in Article 13, point 3, stipulating that:

The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions

More recently, in 2016, the United Nations Human Rights Council adopted a resolution on the protection of human rights on the Internet, stating that it:

Condemns unequivocally measures to intentionally prevent or disrupt access to or dissemination of information online in violation of international human rights law and calls on all States to refrain from and cease such measures

A coalition of 30 governments, including Brazil, has also condemned the blockages by providing a series of recommendations to governments in early 2017. In the private sector, multinationals such as Facebook, Google, and Microsoft, and telecommunications giant Telefonica, AT&T, and Orange have come up with a joint statement on networks and services shutdowns and the responsibility of telecommunications companies in seeking greater transparency and awareness of the social and economic damage of these measures.

Currently, in Brazil, nothing can confirm that application blockages and temporary disruptions of the Internet will occure. But several factors are combined to promote this type of measure. Any suspected blocking must be taken into account. We can not at any time tolerate the violation of the right to information and communication of the Brazilian people. The international network of mobilization is following the situation closely and is ready to mobilize.