[Gobernanza-Internet-Paraguay] CGI.br clarification note regarding blocking of Whatsapp in Brazil

[Natalia Enciso]

Nota aclaratoria del CGI.br sobre el caso de bloqueo de whatsapp de la semana pasada en Brasil.
Para los que siguieron el caso y para ver los pronunciamientos que hacen sobre casos de Internet. 
Saludos y felices fiestas! 
Natalia 

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> 
> Asunto: [governance] CGI.br clarification note regarding blocking of Whatsapp in Brazil
> Responder a: governance en lists.igcaucus.org,Carlos Afonso <ca en cafonso.ca>
> 
> CLARIFICATION NOTE in virtue of the decision issued by the Honorable
> Judge of the 1st Lower Criminal Court of São Bernardo do Campo, ordering
> the suspension of the Internet application “Whatsapp” in the national
> territory of Brazil.
> 
> 17-December-2015
> 
> The Brazilian Internet Steering Committee (CGI.br), after taking notice
> of some excerpts of the decision issued by the Honorable Judge of the
> 1st Lower Criminal court of São Bernardo do Campo, ordering fixed and
> mobile Internet Service Providers in Brazil to suspend for 48 hours the
> access to the domains whatsapp.net and whatsapp.com and the inherent
> subdomains by blocking the traffic of any content as well as all IP
> addresses related to such domains and subdomains, including by adopting
> measures aimed at clearing cache memories related to the latter, among
> other measures.
> 
> HEREBY
> 
> clarifies that Article 12 of Law 12.965/2014 (or simply “Marco Civil”)
> only authorizes the temporary suspension of the activities expressly and
> exhaustively listed in the caput of article 11 of Marco Civil, i.e., the
> collection, storage, retention and treatment of logs, personal data or
> communications by Internet access/connection and application providers.
> Accordingly, article 12 of Marco Civil cannot be construed as something
> that entails the full and unrestricted suspension of all activities of
> Internet services and applications providers that operate in Brazil.
> 
> Moreover, the Steering Committee takes up this opportunity to reiterate
> some of the terms of a clarification note previously adopted by its
> board members on March 3, 2015, by which they evaluated a similar
> decision adopted by a lower court of the state of Piauí, specially in
> relation to the following aspects:
> 
> 1) Article 12 of Law 12.965/2014 comprises a group of sanctions, namely
> warnings, fines, the temporary suspension of activities involving the
> acts specified in Article 11 as well as the prohibition of exercising
> those same activities. Those sanctions shall be applied gradually and
> must be strictly aimed at entities that violate the rules related to the
> protection of logs, personal data and private communications.
> 
> 2) Any action taken against illicit activities on the network must be
> aimed at those directly responsible for such activities and not at the
> means of access and transport, always upholding the fundamental
> principles of freedom, privacy and the respect for human rights
> (Resolution CGI.br/Res/2009/03/P);
> 
> 3) Item VI under Article 3 of Marco Civil restricts the liability of
> Internet stakeholders to the specific extent of the activities they
> perform; and
> 
> 4) Article 18 of the same Law states that “the Internet connection
> provider shall not be subject to civil liability for damages resulting
> from content generated by third parties”.
> 
> The members of the board of CGI.br believe that Marco Civil does not
> provide any legal ground for the unrestricted suspension of Internet
> services and other activities and measures that adversely affect a
> diffuse and indiscriminate group of Internet users in Brazil and in
> neighboring countries that use the infrastructure and services provided
> by Brazilian companies.
> 
> Therefore, CGI.br takes note of the efforts entailed by
> telecommunications and network providers in the country to cope with the
> court order, in full compliance with Brazilian Law, in spite of not
> being parties to the respective action; and commends the Honorable
> Justice Dr. Xavier de Souza, of the Court of Appeals of the State of São
> Paulo, who issued a writ of mandamus to revoke the lower court's
> decision, normalizing the operation of Whatsapp in Brazil. His action
> realigned the jurisdictional process to the general principle of
> non-liability of the network comprised in CGI.br's Decalogue of
> Principles for the governance and use of the Internet, which provided
> the normative basis for the principles, guarantees, rights and duties
> enshrined in the Federal Law 12.965/2014.
> 
> -- 
> 
> Carlos A. Afonso
> Instituto Nupef - https://nupef.org.br
> CGI.br - http://cgi.br
> 
> GPG 0x9EE8F8E3
> 
> ____________________________________________________________
> 
> 
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