Content Regulation / Censorship, Privacy, Data Protection and Retention, Defamation / Reputation
Hegglin v. Google
Closed Expands Expression
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In 2009, the Inter-American Court of Human Rights found Brazil responsible for violating the rights of privacy and freedom of association of a group of individuals belonging to two social organizations working to advance agrarian reform in the country. The case arose in 1999 after the Military Police of the State of Paraná carried out unlawful telephone monitoring and later disseminated the communications to local and national media outlets. In its decision, the Court determined that the interception of the telephone conversations constituted an infringement of Article 11 of the American Convention of Human Rights (“ACHR”) by interfering with the victims’ lives since the conversations were private and the victims had not authorized the wiretapping. The Court also found that the State’s actions caused fear and tensions and affected the associations’ image and credibility, thus affecting the free and normal exercise of the victims’ right to freedom of association in violation of Article 16 of the ACHR.
The petitioners, Arlei José Escher, Dalton Luciano de Vargas, Delfino José Becker, Pedro Alves Cabral, and Celso Aghinoni, were members of two civil society organizations, the Agricultural Cooperative of Conciliation Forward Limited Partnership (Associação Comunitária de Trabalhadores Rurais “ADECON”) and the Communal Association of Rural Workers (Cooperative Agrícola de Conciliação Avante Ltda “COANA”). With the Agricultural Cooperative of Conciliation Forward Limited Partnership (Movimento dos Trabalhadores Rurais Sem Terra “MST”), the organizations shared the goal of advancing agrarian reform.
Through this reform, the organizations sought to establish a more protective system that promotes the rights of rural workers. However, as a result of this movement, social conflict led the State to implement a series of public policies, including a national plan to combat violence in rural areas, the incorporation of national guideline regarding the execution of court orders to maintain or reinstate collective ownership, and the enactment of Decree No. 6,044 which established the “National Policy for the Protection of Human Rights Defenders”.
On April 28, 1999, Colonel Kretschmer, the Deputy Commander and Chief of Staff of the Military Police, requested authorization from the Loanda Court “to carry out the interception and monitoring of telephone communications on the lines of COANA” [para. 89].
On May 5, 1999, Judge Khater from the Loanda Court authorized Major Neves, the then Head of the Águila Group of the Military Police of Paraná, a request to intercept and monitor the telephone line installed in the offices of COANA. In his plea, Major Neves argued there was “strong evidence that it was being used by MST leaders for criminal purposes.” [para. 90]. The request was granted without providing grounds for the decision and without notifying the Prosecutor General’s office.
On May 12, 1999, in a similar request, Military Police Sergeant Silva requested authorization to intervene in the ADECON offices’ telephone lines, which was approved by the judge.
On May 25, 1999, After Major Neves requested the Loanda Court cease the interception and monitoring of the telephone line, Judge Khater solicited the telephone company Telecomunicações do Paraná S/A (TELEPAR) to stop the interception.
On June 7, 1999, the Jornada Nacional, a popular Brazilian television news program, transmitted extracts of the recordings. The following day, the former Secretary of Security held a press conference in which he commented and played some of the recordings and discussed the actions taken by the police to empty the MST camps.
On July 1, 1999, Major Neves handed over to Judge Khater 123 tapes of the intercepted conversations between May and June, including some in which Mr. Aghinoni, Mr. Escher, and Mr. de Vargas were mentioned. However, these tapes did not contain recordings of the complete conversations; they only depicted extracts considered significant by the police.
Judge Khater requested that the Prosecutor General’s Office analyze the monitoring petition for the first time on May 30, 2000, more than a year after the interception orders were granted. The Prosecutor General’s office concluded that the interceptions were motivated by political considerations to monitor MST activities with no regard to the right to privacy and freedom of association, and hence the Loanda Court was asked to adjudge these interceptions as invalid. This opinion was rejected in totum by Judge Khater on April 18, 2002, and ordered the tapes destruction by April 23, 2002.
Criminal investigation and proceedings
In August 1999, at the request of MST and Comissão Pastoral da Terra (CPT), the Prosecutor General’s Office opened criminal investigations into the “possible perpetration of the offenses of usurpation of public functions, illegal telephone interception, violation of judicial confidentiality, and abuse of authority by the former Secretary of Security, Judge Khater, Colonel Kretscherman, Major Neves and Sergeant Silva” [para. 105].
On October 6, 2000, the Special Organ of the Court of Justice ordered the closure of all the investigations against the public officials concerning the telephone interception and requested the case file be sent to a court of first instance to analyze the conduct of the former Secretary of Security relating to disseminating the intercepted conversations.
On April 11, 2001, after the investigation was concluded, the Prosecutor General’s Office filed a complaint against the former Secretary of Security. On December 23, 2003, the Second Criminal Court of the Comarca of Curitiba sentenced the former Secretary of Security to “a fine and two years and four months’ imprisonment with the latter substituted by community service” [para. 106]. After the former Secretary appealed the decision, the Second Criminal Chamber of the Court of Justice acquitted the former Secretary of Security. Notably, the Court determined that he had not violated the judicial confidentiality of the information obtained through telephone interception since a television station had disseminated the information the previous day.
Mandado de segurança
On October 5, 1999, the petitioners presented a Mandado de segurança (writ of mandamus) before the Court of Justice of the State of Paraná, requesting the suspension of the telephone interceptions and the destruction of the recorded tapes. However, on April 5, 2000, the Court ordered the extinction of the mandado de segurança since the “interceptions had ceased and that the action had therefore lost its purpose.” [para.108]. Consequently, the plaintiffs filed embargos de declaração (motion for clarification), so the Court elucidated why it had denied the request for the tapes’ destruction. Yet, on June 7, 2000, the Court rejected the motion.
On November 17, 1999, the petitioners filed an administrative complaint against Judge Khater. Nevertheless, on September 28, 2001, the Corregedoria-Geral da Justiça (Judicial Administrative Department) held that she had not committed any wrongdoing and ordered the case be closed.
Mr. Escher and Mr. de Vargas individually filed civil actions against the state of Paraná for reparation of non pecuniary damage. On August 9, 2007, the court of first instance the civil dismissed Mr. de Vargas’s suit.
Proceedings before the Inter-American Commission on Human Rights
On June 30, 2000, on behalf of Mr. Escher, Mr. de Vargas, Mr. Becker, Mr. Cabral, and Mr. Aghinoni, the Rede Nacional de Advogados Populares (National Popular Lawyers Network) and the Center for Global Justice filed a Petition with the Inter-American Commission on Human Rights (“IACHR”) against the State of Brazil.
On March 2, 2006, the IACHR found the case admissible and on March 8, 2007, declared the State “responsible for the violation of Articles 8(1) (Right to a Fair Trial), 11 (Right to Privacy [Honor and Dignity]), 16 (Freedom of Association), and 25 (Right to Judicial Protection) of the American Convention” [para. 3].
On December 20, 2007, after the State failed to adopt its recommendations, the IACHR submitted the case to the Inter-American Court of Human Right.
The main issue for the Inter-American Court of Human Rights to analyze was whether the State had violated the petitioners’ rights under Articles 8(1), 11, 16, and 25 of the ACHR as a result of the interception and monitoring of their telephone lines and the dissemination of the information gathered from the monitoring.
In its submission, both the IACHR and the legal representatives of the petitioners requested the Court to declare that the State was responsible for violating Articles 8, 11, 16, and 25 of the American Convention and to order the State to adopt specific measures of reparation.
In turn, through its submission, the State argued that “the domestic courts had examined the conduct of the military police who requested the telephone interception, of the judge who authorized it, and of the Secretary for Public Security at the time who had disseminated part of the recordings, and concluded that there had been no unlawful conduct” [para. 5].
Moreover, the State pleaded with the Court to recognize that it had adequately and effectively taken all administrative and judicial measures requested by the petitioners and that it had done everything to investigate the allegations. Finally, the State asked the Court to declare that the State authorities’ actions had not contravened Articles 1(1), 2, 8, 11, 16, 25, and 28 of the ACHR.
The Court noted that Article 11 of the ACHR “prohibits all arbitrary or abusive interference in the private life of individuals, setting out different aspects of this, such as the privacy of their families, their home or their correspondence” [para. 113]. The IACtHR recalled its decision in the case of Ituango Massacres v. Colombia to highlight that “the sphere of privacy is characterized by being exempt and immune from abusive and arbitrary invasion by third parties or public authorities.” [para. 113]. Likewise, the Court referred to its decision in the case of Tristán Donoso v. Panama to underscore that “Article 11 applies to telephone conversations irrespective of their content and can even include both the technical operations designed to record this content by tapping it and listening to it or any other element of the communication process” [para. 114].
The Court stressed that in light of the evolution of technology and the fluidity of information, new risks emerge to effectively protect individuals’ right to privacy; thus, states must raise their commitments to adjust traditional forms of protecting this right. Having the latter in mind, the Court underscored that Article 11(2) of ACHR establishes the criteria required for the right to privacy to be restricted. Particularly the Court noted that any interference to this right must not be abusive nor arbitrary, must be established by law, pursue a legitimate aim and be necessary in a democratic society.
The Court remarked that in the present case since the petitioners’ telephone conversations were private and did not authorize the disclosure to third parties, their interception by State agents constituted an interference in their private life. By employing the three-part test set out in Article 11(2) of the ACHR, the Court proceeded to analyze whether the State’s actions were consistent with its human rights obligations under the Convention.
The Court stressed that for a restriction to meet the requirement of legality, the conditions and circumstances in which it is applicable must be clearly established by law. In the immediate case the Court analyzed whether the interception of telephone conversations complied with the national legal provisions. The Court noted that Article 5 (XII) of the Brazilian Constitution establishes that “the confidentiality of telephone conversations is inviolable, except in the circumstances and as set by law for purposes of a criminal investigation or the preliminary investigation in a criminal action” [para. 132]. The Court then stated that the exception is regulated by Article 1 Law No. 9,296/96, which sets two scenarios in which a telephone interception request can be granted, either for the purpose of a criminal investigation or for the preliminary investigations in a criminal action. The Court noted that in the present case, while Major Neves’s purpose for requesting the interception of the telephone lines was to investigate the murder of Eduardo Argoni and the misuse of public funds, he failed to follow the protocol established for the submission required to verify the alleged facts. Additionally, the Court noted that Sergeant Silva’s application had the same concerns since he did not reveal the interceptions’ purpose nor their connection to a criminal investigation. Consequently, the Court determined that both requests did not comply with Articles 1 and 8 Law No. 9,296/96.
The Court also found that Articles 2 and 4 of Law No. 9,296/96 were infringed since neither the requests nor the decisions granting the interceptions “provided reasonable indications of authorship or participation of the members of COANA and ADECON in the criminal offenses supposedly investigated or the means to be used to implement the requested interception” [para. 134].
Furthermore, the Court stressed that Article 3 of Law No. 9,296/96, in light of Article 144 of the Constitution, establishes that the civil police in charge of criminal investigations are the only legally qualified authorities to request the interception of telephone lines. In the instant case, the Court recalled that the Loanda Court had authorized the request made by members of the Military Police, that is, Major Neves and Sergeant Silva. Nevertheless, the Court remarked that only authorities legally empowered to request the interception of the COANA and ADECON telephone lines were “the chief of police responsible for the investigation or the Secretary for Security in ”substitution of the former ” [para. 136]. Additionally, the Court noted that while judges are empowered to order the interception of telephone lines ex officio, in the present case, Juge Khater had granted the request made by the military police rather than out of her own initiative. Considering the latter, the Court found that the national authorities had disregarded Article 3 of Law No. 9,296/96.
Regarding whether the national authorities had respected the content of Article 5 of Law No. 9,296/96, the Court noted that this article “establishes that the decision authorizing a telephone interception shall be founded (to the contrary it will be null) and shall also indicate how the procedure is to be carried out ” [para. 138]. It also emphasized that its case law reiterated the importance of national judicial authorities justifying their decisions, particularly when examining judicial guarantees since a ruling can impact individuals’ human rights. Considering the latter, the Court remarked that in the instant case, Judge Khater had authorized the telephone interceptions without explaining why she granted the measure, nor did she state how the procedure should have been carried out. Moreover, the Court emphasized that Article 5 of Law No. 9,296/96 “states that the measures may not exceed 15 days, renewable for the same period of time provided that the essential nature of the evidence had been confirmed” [para. 141]. However, it noted that while the first phase of the interception lasted over 13 days, the second phase lasted for 22 days, contravening the aforementioned law.
Concerning Article 6 of Law No. 9,296/96, the Court stated that this provision specifies that “when the request has been granted, the police authority shall conduct the interception procedure and shall communicate the order authorizing the measure to the Prosecutor General’s Office, who may supervise the procedure” [para. 142]. In the instant case, since more than a year had passed since the interceptions were granted and it was almost a year after they had ceased that the Prosecutor General’s Office was made aware of their existence, the Court deemed that the national authorities had acted in contravention of this disposition.
Lastly, the Court noted that Article 9 of Law No. 9,296/96 establishes that “any recording that is not of interest as evidence in the investigation or in the criminal proceedings shall be destroyed following a judicial decision, at the request of the Prosecutor General’s Office or the interested party” [para. 144]. However, since tapes’ destruction was beyond the scope of the case, the Court did not examine this issue.
Considering the previous, the Court concluded that “the telephone conversation interceptions and recordings that [were] the object of this case did not comply with Articles 1, 2, 3, 4, 5, 6 and 8 of Law No. 9,296/96 and, therefore, were not based on the law” [para. 146]. Given that none of the dispositions met the requirement of legality, the Court found it unwarranted to continue its examination of the necessity and purpose of the measure and determined that Brazil was responsible for the violation of the right to privacy as entrenched in Article 11 of the Convention of Mr. Escher, Mr. de Vargas, Mr. Becker, Mr. Alves Cabral, and Mr. Aghinoni.
The Court recalled that fragments of the recordings obtained through the wiretaps were broadcasted on June 7, 1999, on the Brazilian TV program Jornal Nacional. It further considered that it was very likely that the material shared with the network contained the recordings of the victims’ conversations. Therefore, the Court deemed there was interference with their private life, particularly since none of the interlocutors had authorized their dissemination. To examine whether such interference was compatible with the Convention, the Court proceeded to analyze whether the conversations’ dissemination met the legality requirement in Article 11(2).
The Court noted that Article 9 of Law No. 9,296/96 establishes that “during a telephone interception procedure of any kind, “the confidentiality of the procedures, the recordings, and the respective transcripts” must be preserved” [para. 160]. Likewise, the Court remarked that Article 10 of the Law stipulates the act of “breaching judicial confidentiality without judicial authorization or for purposes that have not been authorized by law” [para. 160] constitutes an offense. Considering the previous, the Court highlighted that in the present case, the recordings were shared with unrelated third parties to the investigation on two occasions, first, when a State agent anonymously delivered tapes to the Globo Television Network and then when the former Secretary of Security played the recording and handed the transcripts of extracts of the tapes to journalists during the press conference.
Regarding the first dissemination, the Court held that the State infringed Articles 1,8,10 of the Convention since it had failed to explain how private conversations allegedly part of a criminal investigation ended up in the media. The Court underscored that it is the State’s “obligation to respect the confidentiality of telephone conversations intercepted during a criminal investigation, that is: (a) necessary to protect the privacy of the persons subjected to a measure of this nature; (b) pertinent for the effects of the investigation itself, and (c) fundamental for the satisfactory administration of justice” [p. 162].
Concerning the dissemination by the former Secretary of Security, the Court found that such conduct violated the victims’ right to protect their privacy, honor, and reputation, specifically by sharing the tapes’ content without legal authorization or a court order as required by law. As a result, the Court considered that “by disseminating private conversations that were protected by judicial confidentiality without respecting the legal requirements, the State violated the victims’ right to the protection of their privacy, honor and reputation established in Articles 11(1) and 11(2) of the American Convention” [para. 164].
The Court then examined if the State had infringed the petitioners’ right to freedom of association as established in Article 16 of the Convention. The Court remarked that the exercise of the right to associate freely may be subject to restrictions when they are “specified by law that have a legitimate purpose and that, ultimately, may be necessary in a democratic society” [para. 173]. According to the Court, in the present case, the State’s “interference in the communications of COANA and ADECON did not comply with the supposedly legitimate purpose proposed – namely the criminal investigation of the alleged offenses – and resulted in the monitoring of the activities of the members of the said associations” [para. 178]. Consequently, the Court determined that monitoring the association’s telephone communications and the subsequent dissemination through the various media channels induced fear and tensions that affected the association’s image and credibility. Thus, the Court found that the State violated the right to freedom of association as established in Article 16(1) of the Convention to the detriment of the petitioners since they feared for themselves because of their affiliation to the associations.
Regarding the petitioners’ claim that the State had violated their rights to a fair trial and judicial protection, respectively, entrenched in Articles 8(1) and 25(1) of the ACHR, the Court held their claim founded concerning the allegation that State had dropped the administrative proceedings without any explanation. However, regarding the mandado de segurança, the Court held the petitioners’ contention unfounded. Specifically the Court deemed that while it was the appropriate judicial remedy to protect the victims’ right to privacy, they had filed the petition after the State had ceased the wiretapping; thus, the writ of mandamus couldn’t be carried out. Likewise, the Court stated it did not have sufficient evidence to declare the violation of these rights regarding the civil actions initiated by the petitioners since it could not determine whether the suits were ineffective.
Finally, the IACtHR found that the State had not failed to comply with the Federal Clause established in Article 28 of the ACHR, which specifies that the States must take all the necessary measures to ensure that all authorities adopt and comply with the American Convention provisions. In the present case, the Court held that “the mere mention by the State of communication difficulties with a component entity of the Federal State during an unscheduled working meeting and in a brief [did] not, of itself, signify or entail noncompliance with the provision” [para. 220] as claimed by the petitioners.
Considering the violations of the Convention, the IACtHR held that the decision constituted per se a form of reparation to the petitioners. Additionally, it ordered the State to publish the cover of “the Judgment, Chapters I, VI to XI excluding footnotes, and the operative paragraphs once in the Official Gazette and in a second paper with widespread circulation in Paraná” [para. 239] and post the decision on an official website of the State of Paraná. Likewise, the Court instructed the State to investigate the dissemination of the recorded conversations and prosecute those responsible and requested the State to provide continuous training to government agents to ensure they comply with human rights obligations.
The Court did not award any pecuniary damages due to the “lack of elements proving that the said losses really occurred” [para. 228]. However, regarding non-pecuniary damages, the Court awarded Mr. Escher, Mr. Luciano de Vargas, Mr. Becker, Mr. Cabral, and Mr. Aghinoni $20,000 each for the violation of their rights to privacy, honor, freedom of association, fair trial, and judicial protection. Furthermore, the Court awarded $10,000 to the victims for the expenses incurred by their legal representatives.
Judge Sergio García Ramírez presented a concurring opinion stating that any interference of the telephone lines must be conditioned to strict requirements that “mark the frontier in a democratic society between the legitimate exercise of authority and the intolerable abuse of power” [para. 11]. He considered that “intervention and revelation are the two sides of a single coin: invasion of private life, lawful or unlawful. The legitimate purpose that could justify the interception – or the interference in spaces of private life – ceases in the face of the unlawful dissemination of information that should have been known only by the authorities and safeguarded by them” [para. 11].
Judge Ad Hoc Roberto de Figueiredo Caldas presented a separate opinion, in which he held that the Federal Clause entrenched in Article 28 of the Convention should not be seen as a punishment but rather as a means to define the domestic responsibilities for the violations.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The IACtHR expanded freedom of expression through this decision by holding the state accountable for unlawful telephone monitoring and later disseminating the communications to local and national media outlets. Likewise, through this ruling, the Court emphasized the consequences of illegal wiretapping on individuals by damaging the associations’ image and credibility and altering the free and normal exercise of the right to freedom of association.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Articles 5, 5(59), 93, 144
Articles 1, 2, 3, 4, 5, 6, 8, 9, 10
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