Brazil: Decision On The Secret App Applies Internet Bill Of Rights

Last Updated: 4 November 2015
Article by Dirceu Rosa and Douglas Leite

This groundbreaking decision concerned the first high impact case after enactment of the Federal Law # 12,965/14 (better known as Internet Bill of Rights). The 3rd Panel of the Espirito Santo State Court of Appeals reversed an injunction that ordered the removal of the Secret app from the virtual stores of both Google and Apple.

The Secret app was released in January 2014 and provided anonymous content sharing among users. The platform allowed users the freedom to post ideas and opinions, and provided means to share these with third parties while not feeling vulnerable. The controversy began when some users misused the tool by sharing harmful content, and the issue got national attention by the Brazilian media, which portrayed the app in a very negative manner.

Due to the high impact of the app, the Espirito Santo State Public Prosecutor's Office filed a civil class action against Google, Apple and Microsoft (the latter had a similar app called Cryptic) requesting the removal of the apps from both the relevant virtual stores and the mobile phones of users who installed it. The main grounds of the action was the prohibition of anonymity set out in Section IV of Article 5 of the Federal Constitution.

"Art. 5, IV – the expression of thought is free, and anonymity is forbidden;"

In August 2014, the trial court Judge accepted the requests made by the Public Prosecutor's Office and granted a preliminary injunction determining the shut-down of the app. In addition, the injunction ordered the removal of the app from the users' smartphones within 10 days, and payment of a daily fine of BRL 20,000 in cases of default.

It is interesting to mention that this class action was the 1st. major lawsuit involving a mobile application under the scrutiny of Law 12.695/14, widely known as the "Internet Bill of Rights" (or, in Portuguese, "Marco Civil da Internet"). The Law entered into force in June 2014, a couple of months before the Espirito Santo State Public Prosecutor's lawsuit, and had initial criticism from several law enforcement authorities, as Brazilian legislators adopted a perspective of setting forth the basic rights of the Brazilian Internet users instead of creating a law focused on cybercrime and the punishment of users.

Therefore, the reliability of the Internet Bill of Rights was, at that time, still under challenge and not yet tested towards Brazilian Courts.

Secret Inc., the company behind the app's operation, made a voluntary appearance in the case. It argued that the Internet Bill of Rights was being fully complied with as it stored user access logs for six months as required under article 15 of the statute. As a result, it would be possible to identify users responsible for posting potentially offensive content.

When the company appealed the trial court decision, it claimed that such decision translates into prior censorship of users. In addition it argued that the decision is in breach of Article 19 of the Internet Bill of Rights, which forbids both censorship and civil accountability of application providers, unless the latter does not take any action to remove the content appointed as infringing after a specific judicial order.

"Art. 19 – In order to ensure freedom of expression and to prevent censorship, the provider of Internet applications will not be liable for civil damages arising out of content generated by third parties if it acts to timely make unsearchable the content identified as infringing. This would happen after specific court order, within the framework and technical limits of its services, except for contrary established statutory provisions."

On November 11, 2014, appellate judge Robson Luiz Albanez issued a decision staying the effects of the injunction. The judge referred to the provisions of the Internet Bill of Rights and found that the appealed decision violated provisions on freedom of thought and created an atmosphere of legal uncertainty regarding the Internet in Brazil as a whole.

The final decision on the interlocutory appeal was published on August 17, 2015. The decision of the 3rd Panel of the Espirito Santo State Court of Appeals rejected the injunction that prohibited the Secret app from operating and confirmed that the app complied with the provisions of the Internet Bill of Rights.

Again, it is important to stress that, while the app is no longer available, the "Secret" case is quite relevant to the study of Technology Law in Brazil, particularly as regards to how the Internet Bill of Rights should be interpreted and adopted by Brazilian Courts. Even if a mobile app could, eventually, be misused in Brazil by some users, the Internet Bill of Rights inherently rejects the idea that the ISP should have their app removed from the market, blocked or even deleted, without notice or under an injunction.

Therefore, this decision is a great achievement for Internet apps and is in line with international standards of protection to freedom of thought.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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