Suspending Telegram is “collective censorship” and does not help fight crime

The suspension of Telegram by order of Justice, this Wednesday (26), affected millions of people and companies that use the platform. Through social networks, users reported difficulties accessing the application and began to use VPN services.

The network was suspended after alleged refusal to provide the Federal Police with data on virtual neo-Nazi groups. Experts heard by People’s Gazette point out that taking the app offline for this reason does not solve the problem in question, violates the constitutional principle of freedom of expression and characterizes “collective censorship”.

“The measure obviously does not solve the problem it seeks to solve and makes the situation even worse, with the possibility of the company suspending its operations in Brazil and criminals continuing to operate from platforms in other jurisdictions”, says lawyer Giuliano Miotto, president of the Freedom and Justice Institute.

In the opinion of criminal lawyer Luiz Mantovani, executive director of the Brazilian Association of Conservative Jurists (Abrajuc) in Rio de Janeiro, the suspension of the platform violates another principle of Criminal Law: that of the intranscendence of the sentence, which says that no sanction should exceed the convict’s person. “In the present case, the entire Brazilian population is being penalized, which could even generate financial losses for those who use the application for professional matters”, he explains.

Mantovani also mentions that the application of a fine to the company would be a sufficient penalty, without the need to interrupt the service. In addition, he considers that the value of BRL 1 million per day of non-compliance imposed by the judge is a violation of the principle of proportionality.

Constitutionalist lawyer André Marsiglia, a specialist in censorship and freedom of expression, evaluates the suspension as an “isolated judicial act that does not lead anywhere, nor does it prevent any crime”. According to Marsiglia, the apps are like “public squares” and the very urgency of the Legislative and Judiciary in wanting to regulate them shows their social relevance.

“You cannot suspend or ban the public square because an offense has been committed there. to continue manifesting,” explained Marsiglia.

The regulation of social networks mentioned by Marsiglia has been discussed in the Fake News PL, which should be voted on by the plenary of the Chamber of Deputies next Tuesday (2), after approval of the emergency regime this week. The matter is a priority for the government of Luiz Inácio Lula da Silva (PT) and for the Superior Electoral Court (TSE), chaired by Minister Alexandre de Moraes.

A People’s Gazette tried to contact Telegram, but the company has not yet commented on the court decision. Telegram’s suspension is valid until the company responds to requests made by the Federal Police.

First instance decision

The suspension order came from Judge Wellington Lopes da Silva, of the 1st Federal Court of Linhares, in Espírito Santo. By understanding that the company only partially complied with the court order that was addressed to it and did not want to fully cooperate with the ongoing investigation, in addition to the suspension, the judge determined a fine of R$ 1 million.

Miotto claims that a measure of this magnitude and reach could never be taken by a judge of first instance. “Brazil is heading towards a serious state of anomie, in which any judge or bureaucrat can, in defiance of the law, make decisions that affect millions of people and without even subsequent accountability in the face of excesses or abuses of power”, he says. he.

Publicist lawyer Adriano Soares da Costa agrees that the decision is a disproportionate measure, which goes beyond the limits of the jurisdiction of the judge of first instance. “The decision of a judge of first instance cannot have effects beyond his jurisdiction and the object of the process or police investigation under his competence”, he explains.

Soares da Costa recalls the judgments of ADPF 403 and ADI 5527, at the Federal Supreme Court (STF), on the blocking of the WhatsApp application, in which Ministers Rosa Weber and Edson Fachin voted for the impossibility of these judicial measures. He also recalls that “there was a suspension of a similar decision by a first degree judge, in an injunction granted by Minister Ricardo Lewandowski in ADPF 403”.

In the injunction pointed out by Soares, Lewandowski wrote: “Now, the suspension of the WhatsApp application service, which allows the exchange of instant messages over the world wide web, in the comprehensive way it was determined, seems to me to violate the fundamental precept of freedom of expression indicated here, as well as the governing legislation on the subject. In addition, the extension of the blockade to the entire national territory, it seems, at the very least, a disproportionate measure to the reason that gave rise to it “.

Regarding the fact that the company did not present all the data requested by the Federal Police, Soares da Costa explains that “companies responsible for the traffic of individuals’ data preserve the privacy of messages as a fundamental principle of their work”. Such a measure, according to him, guarantees the “preservation of intimacy and freedom of expression and thought, especially in the face of authoritarian regimes or policies”.

Suspending Telegram is “collective censorship”, says expert

With the suspension of a platform used by more than 40 million Brazilians, according to data from the mobile data analysis company App Annie, there is a “collective censorship”, according to lawyer Giuliano Miotto. “The judge took an absurd decision to punish millions of honest people who use the platform every day, consisting of true collective censorship”, he says.

For Soares da Costa, the suspension is “more than censorship” and means a risk “of limiting freedom of expression through a police power that can invade personal conversations, taking away people’s freedom to safely express their thoughts , leaving the citizen under the dominion of fear”.

Mantovani also sees the measure as censorship and points out that there are other laws capable of holding individuals who overuse their freedom of expression. “If someone criminally attributes a criminal act to another person on the Internet, he must answer for slander, name calling, he responds for injury and we still have Defamation when it offends the good image of the citizen. Interrupting services that in their entirety are beneficial only reinforces the theory that The State is still absolutely incapable of dealing with sensitive issues”, he says.

In addition to censorship, experts fear other risks for Brazil with the adoption of judicial measures similar to that of Telegram, such as the weakening of democracy and an affront to the constitutional text regarding the fundamental right of freedom of expression.

“The risk is that we feed even more case law that, in the name of combating misinformation, fake news and hate speech, promotes and legitimizes censorship. The case law on freedom of expression in Brazil has become hesitant and chaotic since the advent of the inquiry into fake news, from the STF, in 2019. I feel that we have lost the sensitivity of understanding that censorship is never justified, no matter the reason”, says Marsiglia.