Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
Closed Mixed Outcome
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The Civil Court of São Paulo, Brazil, ordered Facebook to provide the IP addresses of users who created an event and page that allegedly violated the peace and defamed the Mayor, João Dória, but denied Dória’s request that the posts be removed. Dória had demanded the removal of the event “Virada Cultural na Casa de João Dorian” (Cultural Event near João Doria’s House) and the page posted on Facebook called “Deixe a esquerda livre” (Leave the left free) in addition to the provision of registration data of those responsible for the event and the page. The Court reasoned that the posts constituted valid criticism of a public person and there was no intention to defame the Mayor personally; further that fear of disturbance near his house did not justify removing details of the event. With regard to his demand for identification of users, the Court said that the Brazilian Constitution “does not allow anonymity”.
Following Mayor João Dória’s controversial decision to move the location of the annual municipal festival “Virada Cultural”, from its usual central location near the Mayor’s house to the Autódromo de Interlagos, a site south of the city, people voiced their dissent by creating an event, “Virada Cultural na Casa de João Dorian”, stating, as humorous criticism, that the festival should happen at the mayor’s house in a high class neighbourhood in São Paulo.
Displeased with the more than 25,000 people who confirmed attendance at the event as well as with other content published by the Facebook page “Deixe a esquerda livre” (“Leave the left free”), whose administrators created the event, Dória requested (i) the removal of the event from the social network, (ii) the removal of the supposedly offensive posts from the page for allegedly insulting his honor and violating public peace and (iii) the registration data of those responsible for creating the page.
In its defense, Facebook argued it lacked standing to be sued and was unable to control content already published on its network, and that there was a limit to the users’ data it could be compelled to provide by law. Dória’s request for an injunction was denied.
Judge Fernando Henrique de Oliveira Biolcati partially granted Dória’s request, determining that Facebook must provide the IP addresses of those who created the “Deixe a esquerda livre” (Leave the left free) page and the “Virada Cultural na Casa de João Dorian” (Cultural Event near João Doria’s House) event. He also ordered provision of some photos but this was dismissed on a procedural appeal by Facebook immediately following the decision.
The Court found that Facebook did not lack standing to be sued despite storing data in other countries, because it carried out activities in Brazil and had the means to comply with the request. Regarding the merits, the Court stated that online communications were protected and that no kind of prior censorship was allowed under Art. 5, items IV and IX, and Art. 220, Second Paragraph of the Brazilian Constitution (freedom of expression and thought). In addition, peaceful assembly is protected by the Constitution (Art. 5, item XVI). However, the Court said, the Constitution also protects against violation of honor, privacy and primary residence, pursuant to Art. 5, items X and XI.
In its reasoning, the Court said that Dória, a successful businessman and mayor of the biggest Brazilian city, was a public person, and therefore subject to public scrutiny. It said that, in such cases, the line between one’s personal life and the public interest can be unclear but, on balance, it concluded that the creation of the event “Virada Cultural na Casa de João Doria” and the posts criticizing some of Dória’s activities did not cross that line. It found that the motivation for the creation of the event – the mayor’s decision regarding the change in the location of the municipal event – and the criticism were legitimate political speech. On the other hand, the Court highlighted that Facebook should identify the users who created the event and posted the criticism because the Brazilian Constitution “does not allow anonymity”. However, it added, “It remains clear that the defendant has no obligation to register and, consequently, to provide other personal data….”.
Accordingly, the Court granted Dória’s request for the IP addresses of the users responsible for the content pursuant to Art. 10, First Paragraph of Marco Civil da Internet (Civil Internet Law in Brazil) so that damages against the users could be sought.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision flies in the face of previous cases in which politicians have successfully applied to have content they were unhappy with removed from social networks. However, it is too soon to say whether the decision signifies a fundamental shift away from removal orders. Further, the decision affirms the constitutional right to provision of electronic data to protect privacy, honor and image.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision does not have a major impact because it was delivered by a lower court. However, it sets a very positive precedent for future cases regarding humorous speech on politicians on the internet.
Let us know if you notice errors or if the case analysis needs revision.