Case Summary and Outcome

A civil court in São Paulo, Brazil held that a state representative who had compiled and shared with the police dossiers of individuals he accused of being “antifascists” had violated the privacy of those individuals. After the state representative had asked his followers on Twitter to share information on people he labeled as “antifascists”, he stated that he had collated information on about 1000 individuals. The information, which included personal details of those individuals, was subsequently leaked. The Court found that even though it was not clear who had leaked the information, the state representative had contributed to the information’s dissemination, and so held that he had harmed and should pay damages to the individuals whose right to privacy had been infringed.

Facts

In June 2020, Douglas Garcia Bispo dos Santos, a state representative in São Paulo, Brazil, used his Twitter account to ask his followers to send him information on the full names and “corroborating evidence” of people who were “antifascists”. He claimed these antifascists were responsible for vandalism and other acts in the midst of a May 2020 demonstration and had engaged in “terrorist acts” under criminal law. On Twitter, he boasted he had assembled information on about 1000 individuals. He then forwarded the dossiers to the police. “Antifa dossiers” later circulated on the internet, but Santos denied those were the ones he had prepared, and claimed the leaked material had been circulating prior to his tweets.

The Public Prosecutor’s Office of the State of São Paulo (MP/SP) filed a class action against Santos before the 21^th Civil Court in São Paulo. The Public Prosecutor’s Office argued that Santos used his position as a state representative to promote, on his social media, a “campaign aimed at gathering information on anyone who identified as antifascist”. [p. 586] The MP/SP stated that the dossier “contains numerous private data of each listed individual, such as full name, Brazilian national identity card number (RG), individual taxpayer registry number (CPF), addresses, phone numbers, vehicles, etc”. [p. 586]The Public Prosecutor requested the immediate removal of all posts expressly mentioning the “antifascist dossier” and sought an order that Santos refrain from promoting any further dissemination of similar content, under penalty of a fine. The Public Prosecutor also sought an order that Santos issue retractions to the individuals listed in the dossier, a payment of R$200,000.00 to the State Fund for Collective Rights for moral damages, and compensation for the material and moral damages suffered by each person included in the dossier.

On December 11, 2020, in a preliminary decision, Judge Márcio Teixeira Laranjo denied the request for the immediate removal of the allegedly illegal content. He found that Santos’s posts, “even if imbued with a potentially forceful and debatable or distasteful tone, do not appear, at first glance, to be sufficiently harmful to warrant the severe measure proposed, which involves the suppression of constitutionally guaranteed freedom”. [p. 154] From a preliminary analysis of the case, Judge Laranjo stated that, in general, “excess in freedom” should be addressed not by “curtailing speech”, but “by exercising the right of reply and, if necessary, by reparative measures under Article 5, V and X, of the Federal Constitution”. [p. 154]

Article 5, X of the Constitution states that “the intimacy, private life, honor, and image of individuals are inviolable, with the right to compensation for material or moral damage resulting from their violation”.

Decision Overview

Judge Márcio Teixeira Laranjo entered the judgment for the 21^th Civil Court. The central issue before the Court was whether Garcia had harmed the individuals included in the dossiers.

Santos argued that he sought public help to identify alleged wrongdoers after violent protests by various groups, including “antifas”, in May 2020. He submitted that the leaked dossier contained publicly available data and emphasized his constitutional immunity as a parliamentarian. He denied any violation of individuals’ honor or material harm.

The Court discussed the prerogative of a state representative (similar to parliamentary immunity). Article 144 of the São Paulo State Constitution states: “Deputies/State Representatives are inviolable, civilly and criminally, for any of their opinions, words, and votes”, and paragraph 11 states that “investigative procedures and their instructional measures shall only be carried out before the Court of Justice [kind of appellate court, which comes after the lower court] and under its control, which shall be responsible for ordering any necessary measures to obtain evidentiary data to demonstrate the alleged offense by a deputy.” The Court noted that, in the present case, there was no violation of the prerogative of a state representative, as this is a class action, and according to Article 14, §11 of the Constitution of the State of São Paulo, this prerogative applies only to criminal cases. [pp. 592-593]. Based on the Petition 5705 case, decided by the Federal Supreme Court on September 5, 2017, the Judge added that, in the present case, Santos would not be held accountable “for an opinion, word, or vote he may have expressed as a parliamentarian”, but rather for illegal conduct, which may lead to his duty to compensate.

The Court recognized that Santos had admitted that he had prepared dossiers. In finding that the assembling of such documents from social media content had the purpose of subsequent dissemination given that the information was of no use to criminal prosecution, it rejected Santos’s argument that he had not distributed the documents beyond his referral to the police. The Court held that “[t]he stitching together of a dossier in which any third parties are listed simply because they supposedly profess a divergent ideology has an unequivocal intent of subsequent disclosure, publicity, even if to a narrow, delimited group” [pp. 592-594] It added that “[i]t is not credible that such a reckless form of research would effectively serve the purpose of aiding law enforcement and, even less, the self-protection of the defendant, moreover inadmissible in a State of Law”. [p. 594]

The Court also rejected Santos’ argument that no harm had been caused given that the data included in the dossiers were publicly accessible on social media and therefore not private. It held that Santos had “encouraged the submission of new data and also promoted the compilation of all obtained information, including forwarding it to the police authorities”, and that Santos had given maximum publicity to third-party data and encouraged his supporters to engage in the illicit conduct. [p. 594]

The Court did not make a finding on whether Santos was responsible for leaking the dossiers, but concluded that, far from listing only irrelevant data, the dossier sometimes included third parties’ identification documents, addresses, and phone numbers, which it characterized as “information that is evidently sensitive and protected by the fundamental right to privacy”. [p. 595] It added that the case becomes even more serious when data exposure occurs “in a time such as the present, marked by great political polarization and radicalism”. [p. 595] It held that the fact that “private data” had been made available by the data subject did not entail that consent had been given for that data to be used by others.

The Court commented that “being recognized in this way, in a list circulated among groups of diverse and sometimes radical and violent ideologies, in present times, constitutes a difficult exposure”. [p. 595] It added that individuals were accused of being “antifascists” solely because they adopted an ideology contrary to Santos’s group, “a sectarian and manifestly authoritarian behavior that does not accept the divergences typical of a democracy”. [p. 595]

Accordingly, citing Article 5, X, of the Federal Constitution, the Court held that there was a clear violation of the right to privacy, honor, and even political and opinion freedoms of the individuals mentioned in the dossier, which constitutes the duty to compensate. The Court rejected the other remedies sought by the Public Prosecutor’s Office of a monetary judgement of 200,000BRL for non-economic harm caused to society as a whole and an order that Santos issue a retraction.