Case Summary and Outcome

A Brazilian court ordered WhatsApp and Facebook to disclose the personal data and IP addresses of three phone numbers associated with the WhatsApp application. These accounts had disseminated an image of a pamphlet containing defamatory and false information about a state deputy seeking reelection during the electoral period. Acknowledging the importance of combating fake news and that the inviolability of private life and data secrecy are not absolute, the Court ordered that the personal data of the phone number owners be provided, and fined the service providers for failing to do so.

Facts

In August 2018, Luiz Sávio De Souza Cruz, a state deputy from Minas Gerais, Brazil, seeking reelection, filed a complaint requesting telecommunications companies, as well as WhatsApp and Facebook, to provide the personal data and IP addresses of three phone numbers. He submitted that during the elections these numbers disseminated a pamphlet containing false and defamatory conversations about him. He explained that he was able to trace the messages back to their original transmitters, the three numbers mentioned. Cruz said that it was necessary to identify the individuals responsible to allow him to pursue a criminal libel case against them in court. He also requested that these accounts be blocked by the platform and that the URL address of the image be provided.

On August 30, 2018, Judge Eduardo Veloso Lago of the 25th Civil Court of Belo Horizonte, in the state of Minas Gerais, issued the preliminary decision. Recognizing that privacy and data secrecy rights, as outlined in Articles 5, X and XII of the Brazilian Constitution, are not absolute and can be set aside by a court order, especially for investigating unlawful acts and criminal offenses, the judge deemed that an urgent judicial order necessary to breach data secrecy was appropriate. Accordingly, he ordered WhatsApp (and Facebook, recognized in the decision as part of the same economic group) to identify the owners of the phone numbers and accounts, under penalty of a daily fine.  The telecommunications companies OI MOVEL S/A and SURF TELECOM were also ordered to provide the data of the phone owners. The Court did not grant Cruz’s request to block access to the Whatsapp application and provide the URL address of images, photos, and videos, as it considered that these measures would be assessed after the defense’s response.

Facebook appealed the preliminary decision on the grounds that the disclosure of data/information about Cruz via the WhatsApp application constitutes a violation of his personality rights, as provided in Article 5, X, of the Federal Constitution. Judge Rogério Medeiros, supported by the other court members, rejected the appeal and stressed the urgency of the measure due to the risk of the data being shared with more people.

Article 5, Clauses X and XII of the Federal Constitution, establishes the rights to personality and data secrecy. Article 10, § 1 of Law 12.965/2014 – the Brazilian Civil Rights Framework for the Internet – requires a judicial decision to compel the provider to make user data available.

Decision Overview

Judge Eduardo Veloso Lago delivered the final decision of the 25th Civil Court of the District of Belo Horizonte in Minas Gerais. The central issue for the Court was whether the inviolability of private life and data secrecy can be set aside given the victim’s need to investigate potential unlawful acts related to fake news and defamatory content.

Judge Lago confirmed his preliminary decision and ordered the identification of the owners of the phone numbers and WhatsApp accounts. He considered blocking access to the application unwarranted, as it would affect third parties unrelated to the case, and ruled out providing a contact channel to request the URL addresses of images, photos, and videos.

As WhatsApp/Facebook had not complied with the preliminary decision, the Judge imposed a fine of 5,000.00 Brazilian reais (approximately $920 USD).

Facebook appealed the decision, but it was again rejected by the appellate court. In a decision delivered on August 22, 2022, that Court upheld the lower court’s decision, emphasizing that “[t]he determination to provide data does not constitute a violation of constitutional precepts and is supported by the constitutional right to information, regulated, in the specific case, by Law No. 12.965/2014”. Judge Luiz Carlos Gomes da Mata also cited an article he had written, adding that “[c]ombating the harmful effects of disinformation for Brazilian democracy is to strengthen the principle of popular sovereignty, enshrined in the sole paragraph of Article 1 of the Constitution of the Republic of 1988”.

Note: A second instance court affirmed this decision on August 20, 2022. See the attached decision under Documents. That ruling is not discussed here since it confirmed the decision of the first instance, without adding relevant elements regarding freedom of expression.