Brazil: Free Speech in the Balance

Oct 2, 2012
By Johanna Mendelson Forman
Google’s Chief Executive in Brazil, Fabio Jose Silva Coehlo, was arrested for refusing to remove a YouTube video that allegedly defamed someone who happened to be running for office.  The judge who ordered the arrest said that by hosting the defamatory video the company was violating Brazil’s electoral laws.  Specifically, Section 243 makes said defamation a serious offense, punishable by fine and arrest. Shooting the messenger, though, does not solve the problem. 
Democratic Brazil has antiquated internet laws that do not protect free speech, which is surprising, given the country’s renown for being open and even tolerating the absurd.  According to the Citizens Media Law Project, Brazilian courts have ordered more than 194 removals of offensive materials on the Google hosted website, more than any other country where the company operates.  Unlike the U.S. or other Western states, Brazil has no safe harbor laws to protect internet service providers who host offensive material. This uncertainly leaves internet hosts at risk.  When a company like Google carries a video, the producer is anonymous and thus it is the website that is exposed. (For the record, Google Brazil voluntarily removed the offensive video, “Innocence of Muslims,” after the attack on the U.S. Consulate in Benghazi.)
The video in question made references to a paternity suit lodged against a mayoral candidate in Sao Paulo. Judge Flavio Peren of Mato Grosso state opined that Google had committed the crime of disobeying election laws by refusing to take down the offending material. The judge added that the video violated the “dignity” of people running for office and even ordered the Google Website to shut down for 24 hours. What stands out is the election law’s fuzzy definition of “defamation,” which a judge can decide and is hard to reconcile with the modern political campaign environment, which typically subjects candidates to hard scrutiny.  
Meanwhile, a double standard exists when it comes to so-called self-defamation.  In October’s municipal elections there are many candidates on official ballots for mayor or city council races that use such names as Batman, Daniel the Cuckold, or Wolverine.  The use of such names could be a violation of copyright and trademarked property.  Yet, no one has challenged these names on ballots, making a mockery of the electoral process. 
Two changes would help Brazil’s communication laws catch up to the times.  An exception to defamation statutes for public figures (as in the United States) would keep candidates, especially powerful ones, from being excessively shielded from criticism.  And a safe harbor law for internet service providers would reduce liability for what third parties post on their platforms.   Without them, incidents like these will continue.   For a country with 73 million computer users, a complete modernization of the cyberspace legal framework is long overdue.  What is troubling is that the judiciary is being forced to choose between freedom of expression and an outdated law that turns democracy on its head.
Johanna Mendelson Forman is a Senior Associate with the CSIS Americas Program.