—Lucas Henrique Muniz da Conceição, Ph.D. Student at Bocconi University
On March 18, Justice Alexandre de Moraes decided to suspend Telegram until the platform complied with the previous five decisions issued by the Supreme Court. The decision follows the partial results of the current judicial criminal inquiry no. 4781, in which investigations have uncovered an extensive system of financing and dissemination of disinformation, with calls to overthrow the Supreme Court and attack its Justices.
The first verses of Cohen’s song neatly summarize the conflict between the Brazilian constituted powers and Telegram, the messaging platform known for its laissez-faire attitude towards content moderation. If Telegram is the ‘dealer’ of disinformation, hosting a plethora of groups and accounts tasked only to antagonize the Brazilian democratic regime with authoritarian discourse, the Supreme Court and democracy itself will be ‘out of the game.’ Contrastingly, if only Telegram and other social media platforms can curtail the threat to democratic governance, it also means that constitutional democracy itself is ‘broken and lame.’
One can observe the situation’s complexity by understanding that both sides of the debacle made mistakes. On the one hand, the decision is plagued with technical faux pas that undermines its value. On the other, Telegram has refused to comply with the Supreme Court orders for more than seven months, not only impeding the proceedings of an ongoing criminal investigation but also failing to engage with the Court and other governmental agencies to provide information and possible countermeasures to curb the spread of disinformation concerning public affairs.
The Brazilian Supreme Court in the Political Arena: The Judicial Inquiry no. 4781
The Judicial Inquiry no. 4781 was installed by the Supreme Court in 2019 to investigate the use of disinformation that promoted threats against the Court’s authority, its Justices, and their extended families. The inquiry was strongly contested in Brazil, with its constitutionality questioned by a Brazilian political party (ADPF no. 572/2019). Although legally prescribed (c.f. Article 43 of the Supreme Court Bylaws), the Court’s jurisdiction to establish criminal inquiries presents a complex scenario in which it conflates the roles of investigator, persecutor, and adjudicator in direct contrast with the prescription from the Brazilian Constitution (c.f. Article 129, I).
In an almost unanimous decision (10 Justices to 1), the Court found that its ability to carry on investigations is constitutional, despite prima facie being in dissonance with the constitution. The reasoning provided by the Court acknowledges the exceptionality of this prerogative but postulates that the jurisdiction is constitutional insofar as the need to protect the Court and its Justices. Additionally, it allows the Court to perform its broader constitutional duties, i.e., guaranteeing the stability of the democratic regime and protecting fundamental rights.
The Court’s reasoning seems to follow what Tushnet describes as the immanence of a fourth branch within the traditional separation of powers in liberal democracies, considering an extended role of intuitions protecting democracy (Tushnet, 2021). Although his case study in Brazil focused on broadening judicial powers vis-à-vis anti-corruption litigation, a similar narrative permeates the Courts’ justification to position itself both as investigator and adjudicator concerning disinformation. The Supreme Court bases its reasoning on the understanding that the spread of disinformation is a polycentric political and institutional issue that risks the stability of the democratic regime and thus warrants a more prominent reaction by the constituted powers.
Since the constitutionality of the investigation was asserted, the investigation has uncovered proof of a group of businesspeople that finance and control the spread of disinformation for inciting protests against the authority of the STF. As a result, search-and-seizure warrants have been executed by the federal police in the offices of members of Congress, private companies, and individual bloggers, including the issue of an arrest warrant for Allan dos Santos, a far-right blogger that is currently evading prosecution abroad.
Temporary Suspension of Telegram: A Tug of War Instead of Collaborative Practices
The decision to temporarily suspend Telegram’s services was issued in confidential proceedings related to the criminal investigation. Initially, the platform’s suspension led to a brief response from the company’s CEO. Using his own platform, Pavel Durov apologized and argued that the non-compliance with the prior legitimate decisions was due to an issue with the e-mails the Court used to send its communications. The apology and excuse seem very shallow, especially considering that beyond the Supreme Court, the Superior Electoral Court has also attempted to contact the platform in order to start a dialogue concerning the spread of disinformation in the country. The Electoral Court’s first attempt was in 2020 when it launched a program to fight disinformation during the municipal elections. A second attempt was made in December 2021, as the multistakeholder program was extended towards the General Elections in 2022. The initiative has mobilized political parties, regulatory agencies, NGOs, and platforms such as Facebook, WhatsApp, Google, and Twitter.
Telegram’s non-responsiveness is an integral part of its business strategy, and Brazil is not the only country dealing with the issue. The German police have been pressuring Telegram to delete far-right content, and the interior minister has also considered banning the platform in the country. Although banning the platform may seem a disproportionate measure, it must be recognized that protecting a constitutional democracy in a country with more than 200 million citizens requires coordinated action from a variety of stakeholders, which was not an option because of Telegram’s policies. The platform’s lack of engagement with Brazilian authorities served its purposes and business strategies at the expense of the nation’s stability.
The temporary ban has also enlightened the extensiveness of the platforms’ power to deal with disinformation. In only 24 hours, Telegram has removed a disinformation post by President Jair Bolsonaro, banned Allan dos Santos accounts and channel, constituted a legal representative in the country, integrated technical measures that allow users to tag content in channels as potentially containing inaccurate information, and adopted other specific methods to combat disinformation. These new methods include new restrictions for users banned for spreading disinformation and new rules concerning content moderation in line with other measures taken by companies such as Meta and Twitter.
Telegram’s efficient compliance after the suspension of its services in the whole country puts the issue in perspective. The platform’s defiance of the Supreme Court jurisdiction and the Brazilian legal system does not stem from an incapacity to input mechanisms that could limit the spread of disinformation. The updated version of the Santa Clara Principles on Content Moderation recognizes the difficulty small platforms may face in implementing more robust content moderation practices. This is not the case for Telegram, especially considering that the platform might have already been using these instruments in other nations, showing an incoherent engagement with law enforcement (Badiei, 2021).
Legality issues Concerning the Marco Civil Law of the Internet In Brazil
From a strictly legal perspective, the Supreme Court decision can be questioned on many fronts. The Court uses the Brazilian Marco Civil to sustain the possibility of suspension of services, despite the legislation not clearly allowing this interpretation. Article 12, mentioned by the Court, prescribe the possibility of sanctions for platforms only when there is a breach in their duties towards the ‘protection of privacy, of the private life, of the honor and of the image of the parties’ (article 10 of the Marco Civil) and a disrespect of Brazilian law (article 11). Still, the suspension prescribed in article 12 is not of the platform itself, but only of the activities of ‘collection, storage, retention and [treatment] of personal data or communications data.’
Also, in an attempt to maximize the decisions efficacy, the Court: (i) issued warrants targeting Apple and Google, demanding they removed the Telegram application from their marketplaces; (ii) demanded telecommunication services and regulatory agencies to block access to Telegram services through technical measures; and (iii) even though the proceedings were confidential, established among other fines, one of R$ 100.000,00 (roughly $20.000.00) to all individuals or companies that attempted to access Telegram services through VPN, possibly extending the Court’s jurisdiction beyond Brazilian national borders.
Political Effectiveness through Legal Missteps?
The decision to temporarily suspend the services was issued Friday. By the end of the weekend, Telegram had complied with most of the prescriptions ordered by the Court. One can say that the Supreme Court decision was, at least politically, efficient as it has brought the tech giant to engage with public authorities and accept the rule of Brazilian law. Still, this political gain is relatively small in the larger scope of preventing disinformation and its use during periods of political instability and general elections. After all, Telegram is not the cause of disinformation, and it does not finance the multiplication of groups and actors involved in the deliberate creation of false information to manipulate civil society and generate political unrest.
Returning to Cohen’s, in this ‘lullaby for suffering,’ there is ‘a paradox to blame.’ Telegram and other social media platforms serve as essential channels in which disinformation campaigns occur. Having these companies assume this responsibility is important both in the investigation of the organized militias that intend to overthrow democratic rule and in the definition of collaborative practices between other state institutions and private platforms, as addressing the issue of disinformation solely from a state-based top-down perspective can be inefficient.
On the other hand, the current instability of Brazilian constitutional democracy is marked by the escalation of contentious dialogues between the nation’s consolidated powers and its institutions. As highlighted by academics and political commentators (Abranches, 2021; Benvindo, 2021), the nation might be amidst a hybrid coup in which the President and affiliate groups continuously attempt to subvert the constitutional order through autocratic legal instruments and classic displays of alleged power. In response, institutions attempt to maintain a virtual notion of regularity that normalizes conflicts at unacceptable levels and reinvents the system of checks and balances among the constituted powers of the nation. Although the more proactive role of the Supreme Court in curbing disinformation is explicitly related to the dangers this institution perceives towards its ability to protect fundamental rights, the expansion of the Supreme Court’s powers should also be interpreted cautiously in the larger framework of Brazilian constitutionalism (Acunha, Arafa and Benvindo, 2018).
Suggested Citation: Lucas Henrique Muniz da Conceição, You want it darker? The Brazilian Supreme Court Kills the Flame: The Temporary Suspension of Telegram Services in Brazil, Int’l J. Const. L. Blog, Apr 12, 2022, at:http://www.iconnectblog.com/2022/04/you-want-it-darker-the-brazilian-supreme-court-kills-the-flame-the-temporary-suspension-of-telegram-services-in-brazil/