In early March, the Chamber of Deputies’ Attorney General, Cláudio Cajado, contacted Google in order to request the removal of online videos and content hosted by the company, for being offensive to deputies.

Cajado, a Democratas Party representative from the state of Bahia, denies that his requests were attempts to restrict freedom of expression, and claimed that he only wanted to speed up the processes that, when left to the Justice, could take months — or even years to be solved.

According to Cajado’s office, Google has responded to his requests by being very “thoughtful” in explaining its policies on content removal.

The Attorney General’s office says it receives an average of two complaints per month by the deputies, mainly because of videos uploaded on YouTube, or posts published on its Blogger platform.

The Chamber of Deputies’ Attorney General is responsible for defending the deputies’ honour and the House’s image.

“We seek a partnership [with Google] to set up actions and attitudes, without creating any kind of erosion [of the House's image] or harsh consequences”, said Cajado to the Chamber of Deputies’ website.

He cited the case of federal deputy and former Rio de Janeiro governor and presidential candidate Anthony Garotinho, who filed a lawsuit against Google demanding the removal of 11 YouTube videos during the 2010 electoral campaign.

“We have to count on Google executives’ good will and on their comprehension over the importance of measures like this to our country’s life and our democracy,” said Cajado.

As he took office as the Chamber’s Attorney General in early March, Cajado also said he planned to ensure that deputies had enough media time to reply to criticism, and plans to do the same online.

All complaints brought by deputies to the Attorney General are analysed by his office’s legal team, to ensure that cases that can lead to actual lawsuits are taken forward.

The most common cases of online attacks brought to the Attorney General’s office are related to slander and — more seriously — crimes against honour, which is a punishable offence according to Brazil’s law.

When it comes to the Brazilian judiciary, rulings about the internet can be very diverse and — sometimes — illogical.

In September 2012, a judge from the state of Mato Grosso do Sul ordered the arrest of Fabio Coelho, Google’s top executive in Brazil, after videos deemed offensive to a mayoral candidate were uploaded to YouTube. When the posts were not immediately deleted, Brazil’s federal police temporarily detained Coelho.

While the Superior Court of Justice has already ruled that internet providers are not obliged to pay reparations to users because of offensive content, the Supreme Court is about to judge if internet companies should supervise information that is published.

This is related to an appeal by Google after the State Justice of Minas Gerais, Brazil’s second most populous state, ordered the company to pay BRL 10,000 (around USD $5,000) to an offended user, and to remove content from Orkut, Google’s social network.

The Attorney General’s new initiative has already worried a few of his fellow deputies.

“The Parliament’s best defence is a transparent behaviour, one that seeks the public interest. And anyone that feels injured or vilified can always go to the Justice and seek reparation. I believe the Attorney General should have other priorities.” says Chico Alencar, a Rio de Janeiro representative for the Socialism and Freedom Party, PSOL.

Alencar also fears that these actions taken along with Google could worsen politicians already tarnished public image.

“Public opinion would consider this as censorship and a privilege for people that already have many other privileges. We should learn how to reply to websites by creating another websites and, if that’s the case, asking those who offend us for the right to reply. That would be enough.”

Editor’s note: Google is a funder of Index on Censorship

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Brazil’s constitution guarantees both freedom of the press and free speech. The government does not impose censorship in the media. However, recent actions taken by the judiciary —  most of them concerning the removal of online content deemed defamatory —  have been extremely controversial.

In September 2012, a judge from the state of Mato Grosso do Sul ordered the arrest of Fabio Coelho, Google’s top executive in Brazil, after videos about a mayoral candidate were uploaded to YouTube. They were considered to be offensive to Alcides Bernal, who was running for office in the state’s capital city. When the posts were not immediately deleted, Brazil’s federal police temporarily detained Coelho.

Fabio Coelho’s case illustrates clearly how rigid the country’s laws are when it comes to offensive material. Still, many people argue that some of the judges’ decisions in these cases have been excessive. “There are gaps in Brazil’s electoral legislation that make this kind of situation possible”, said Google Brazil’s Public Policy Senior Counsel Marcel Leonardi when asked about Coelho’s detention. He hopes that the case will shine a light ‘on the need to adjust Brazil’s law, so that legitimate political outcries from internet users can be differentiated from, say, unlawful propaganda. The internet’s dynamics need to be understood.”

By not removing the videos, Google tried to make a case for the need for more liberal laws regarding free speech in Brazil, says Marcelo Träsel, Digital Journalism Professor at Pontifícia Universidade do Rio Grande do Sul University (PUCRS) in Porto Alegre. To make the internet giant responsible for the content ”is like making builders liable for crimes committed by apartment-buyers, or a bus company for crimes committed by its passengers”, he says. “As long as Google has proper means for filing complaints about content — and it does have them — and takes effective measures to restrict abuses when warned about them, the final responsibility must be laid upon the client that published controversial material”, he adds.

Falha de S Paulo is a blog that was shut down for parodying one of Brazil’s leading newspapers

When Folha de S Paulo, the country’s most influential daily newspaper, was criticised for its coverage of that year’s general elections in a blog called Falha de S Paulo (Folha, meaning “newspaper”, was replaced with falha, meaning “fail”), Folha filed a lawsuit claiming the blog’s logo, content, pictures and text font imitated its graphic design and confused web users. A judge demanded the website be removed and imposed a daily fine on its authors. On 20 February, the ban was upheld. “Censorship is supposed to be prohibited [in Brazil]“, said one of the blog’s creators, Lino Ito Bocchini, in an interview with the website Comunique- Se, “but in reality, free speech is only guaranteed to those who have money”. He later expressed his intention to appeal the decision. The case was raised with Frank la Rue, UN Special Rapporteur on Freedom of Opinion and Expression. In a recent visit to Brazil, he referred to the situation as “terrible”. Marcelo Träsel agrees that financial pressure comes into play in cases like this. “Politicians, business people and other powerful personalities found that they can silence their critics by filing lawsuits. Influential figures who become  the subject of a scandal are in a financial position to “torment” those who criticise them. “These people don’t even need to win in court”, Träsel says. Filing a lawsuit claiming damages could be enough to shut up a whistleblowing blogger, for example. ”I believe that’s the main threat to free speech in Brazil, and I believe that cases like Falha de S Paulo will grow in number.”

The practice of filing lawsuits to remove defamatory content from the internet also disturbs Google’s Marcel Leonardi. “The internet gives you the possibility to immediately respond to anyone, and in many different ways, like posting videos or creating hyperlinks,” he told Index. In situations like the Falha de S Paulo case, the best way of replying to criticism is by having an online presence so that people can “inform and reply to critics in one’s own virtual space,” he said. According to a recent Transparency Report published by Google, Brazil tops the list of countries that regularly removed digital content. In Leonardi’s opinion, Brazil will continue in this vein unless the “culture of lawsuits” is somehow overcome.

In Brazil, the judiciary has the exclusive power to order content to be taken down from a website — no government body has the right to do so. Other public agents, like federal prosecutors, can only file their demands through lawsuits, as regular attorneys must do. Leonardi believes Brazil is caught between liberal countries like the US, which seldom accepts non-copyright related content removal, and less democratic nations where the main problem isn’t content removal but attacks against publishers and direct government censorship over websites and social media.

Experts like PUCRS’s Marcelo Träsel say that adopting laws that differentiate the “virtual world” from traditional media would bring more clarity to judges’ decisions. In 2012, Congress debated two initiatives that pointed in this direction. One of them — a bill that deals with digital crimes, specifying correlated penalties — was voted in by lawmakers in early November.But another draft bill — called Marco Civil da Internet, or the Internet Civil Right Framework, seen as an “Internet Bill of Rights” — was shelved in November. Marco Civil would have guaranteed basic rights for users, content creators and online intermediaries and established that providers are not responsible for user content. It also would have guaranteed net neutrality, a move that angered the telecommunications industry, as it would prevent them from charging different rates for the various kinds of online content.

Deputy Alessandro Molon, who sponsored the bill, says Brazil’s main telecom companies lobbied hard against it, arguing it was contrary to the principles of the free market. “Approving Marco Civil would be a very important step to guarantee freedom of expression in Brazil”, notes Träsel. However, this type of guarantee for civil rights is unlikely to be seen in the country for the foreseeable future, and judges’ decisions are likely to remain as controversial and damaging as ever.

Rafael Spuldar is Index’s regional editor in Brazil. He tweets from @spuldar

This article appears in Fallout: free speech and the economic crisis. Click here for subscription options and more.

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