Brazil has been on the news lately, and not for good reasons: an electoral judge order the arrest of Google's Director in Brazil for not complying with a court decision that ordered the removal a YouTube video with allegedly defamatory content.
A lot has been said about this, but it seems that many people got it wrong, so let's recap some of the misinterpretations that circulated, specially those at the EFF website:
1 – The court decision was not produced as a consequence of an absence of intermediary safe harbor laws
In the EFF article, it was said that "after someone had posted questionable videos, the law came down on none other than the middleman. Simply for hosting an allegedly defamatory video, it seems absurd for a judge to order Google to be shut down for a day — and on top of that for an executive to get arrested. Brazil proves once again why countries around the world need strong intermediary safe harbor laws like those in the United States"
This is simply not true. One can read everywhere, even on the quoted article, that the arrest order was not due the defamatory content, but simply for not act according to a court order. Safe Harbor regulations, such as the one present on the European E-Commerce Directive, generally exempts the content provider, unless it fails to remove the offending content if summoned to do so.
Brazil's dominant jurisprudence is in the sense that there is no immediate responsibility of an online content provider, unless it fails to remove offending content when informed about it. Of course, some first instance decisions still apply a strict liability principle when ruling cases, specially when it is about consumer protection. But this is ceding to a general understanding that the providers are only responsible if previously informed about the harming material.
2 – Freedom of Speech is protected in Brazil, except when it isn't.
Brazil has, indeed, draconian rules when it comes to elections. Electors cannot even wear t-shirts with names of political parties or candidates during the three previous months of the polls. On the day of the elections, it is forbidden to make any publicity or campaign on behalf of any candidate. Special effects on TV commercials are almost prohibited if to ridicule a candidate, or to give a false impression of reality.
Some of these rules are inherited from the dictatorship times, and some of them are a misguided attempt to curb the abuse of economic power. Either way, what Brazilian congressmen and electoral magistrates (who have a great deal of power regarding the interpretation of the prohibitions, to such extent that it has been debated whether the electoral judges were in fact legislating) still don't get is that the problem of location in cyberspace makes the question of enforceability a bit more complicate.
The electoral laws, however, aim to address two problems: one, to avoid the abuse of economic power (as said above), and to avoid that a slow judicial process renders fruitless a late decision. That is why the issues cannot be treated in the sphere of punitive damages. Receiving some money after the elections for an offense made during the political campaign would not compensate the harm done by an illicit advertising that lead a candidate to loose votes.
This is the rationale of the system. It is not defendable vis-a-vis the freedom of expression contained in Art. 5 of Brazilian Constitution (quoted on every lawyer's defense on behalf of sued candidates in elections' period), but so far the understanding of the Superior Courts has been that the legislation is constitutional.
As draconian as it sounds, it does not imply that Brazil has a scenario where freedom of speech is threatened. This is a very punctual situation, and since it harms politicians, there has not been much uproar from the civil society about it, since the general mindset in Brazil is that if something harms politicians, it must be a good thing…
By Francis Augusto Medeiros, Research Assistant
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