Brazil: proposed bills to regulate online blocking threaten freedom of expression

In 2015 and 2016, Brazil experienced concerning and unusual situations for freedom of expression and information. On four occasions, court rulings determined that access to WhatsApp would be blocked, leaving millions of people unable to communicate through Brazil's most popular instant messaging application. Following these events, MPs have proposed several bills aimed to regulate the blocking of sites and applications in national territory.

ARTICLE 19 is concerned about Brazil's proposed initiatives to institutionalize measures for the blocking of applications which must always be exceptional and limited. Its report, “Blockings of sites and applications in Brazil: contributing to the legislative debate” provides an analysis of the four major bills and identifies the main risks they pose. The analysis also details how the proposals fall short on international human rights standards and recommends actions which must be taken for them to comply.

The report stresses that measures to block websites and applications can only be applied in extreme situations according to the 'three part test': They must be imposed by law; have a legitimate purpose (as in the case of protection of children’s rights); and comply with rigorous tests of necessity and proportionality.

ARTICLE 19 also presents other criteria of international standards which must be observed by the bills, among them: the need for a court decision ruling before any blocking and the possibility of challenging blocking orders before an independent court.

Analyses of bills proposed

According to the analysis, bills analysed – PL 5130/2016 and PLS 200/2016 – have the most appropriate approaches to international human rights standards, while PL 3968/97 and PL 5204/2016 represent real threats to the freedom of online expression in Brazil.

The positive aspect of PL 5130/2016 in this case is that it eliminates the possibility of applying the blocking of a site or application as a sanction. A similar measure is also provided by PLS 200/2016, which proposes the imposition of a fine in place of the blocking.

PL 5204/2016 intends to allow Internet applications that are hosted abroad or have no representation in Brazil to become inaccessible in the network when linked to defamation crimes. However this initiative could incur further instances of censorship since in judicial processes of this type, the Brazilian Judiciary has been notable for favouring public figures over the right to freedom of expression and information.

In the case of PL 3968/97, the scope of the bill concerns the possibility of blocking access to sites and applications in cases of copyright infringement. However, this should be considered as a disproportionate restriction on freedom of expression and information since the subject is not framed within the extreme situations in which a blocking may occur.

ARTICLE 19 asserts that online blocking practices are an interference to the fundamental right of any person to seek and exchange information and ideas. In addition, considering the current dynamics of the Internet, they are ineffective measures, since they do not guarantee that the blocked content or service will not be transmitted by other means.

Finally, ARTICLE 19 reaffirms that any initiative aimed at allowing or prohibiting blockings of websites and applications in Brazil should take international human rights standards into account. They must recognize that any blocking measure should be exceptional and adopted after — never before — other less harmful measures. In addition, it must always be submitted to the three-part test, observing the parameters of legality, necessity and proportionality.

Report available in Portuguese.