Content Regulation / Censorship, National Security
The Sunday Times v. United Kingdom (No. 2)
On Appeal Contracts Expression
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A Brazilian judge ordered Facebook and Twitter to suspend the accounts of individuals under investigation for the “dissemination of fake news, false accusations, threats” and other illegal conduct, “affecting the honorability and security of the Supreme Court, as well as that of its members and their families”. Following growing criticism of the Supreme Court online, the Chief Justice had ordered a criminal inquiry and appointed a justice to preside over the inquiry. That justice found that there was evidence of a “coordinated use of organized computer tools, such as accounts on social networks, to create, disclose and disseminate false information or capable of harming institutions of the rule of law, notably the Supreme Court”. After ordering Twitter to suspend the accounts and learning that the suspensions were restricted to viewers from within Brazil, the judge issued an additional order requiring Twitter to block access to the accounts for all users irrespective of their location.
In March 2019, the Brazilian Chief Justice Dias Toffoli initiated a criminal inquiry into insults against the Supreme Court. This came after months of growing criticism of the Supreme Court, as well as insults directed at its members, particularly by supporters of the President Jair Bolsonaro. The Chief Justice cited article 43 of the Rules of the Court, which provides that “[i]n case of a violation of criminal law at the premises of the Court, the President will start an investigation, if it involves an authority or person subject to its jurisdiction, or delegate this assignment to another Justice.” The Chief Justice’s order initiating the investigation described the remit of the investigation as investigating the “dissemination of ‘fake news’ and the financing scheme related to it, false accusations (denunciação caluniosa), threats and other illegal conduct affecting the honorability and security of the Supreme Federal Court, its members and their families”.
Justice Alexandre de Moraes was appointed as the justice to oversee the inquiry, and he then appointed a trial judge to serve as the special master. The special master heard testimony from members of the House of Representatives and examined the content gathered by police. The special master concluded that the evidence demonstrated that there were repeated social media posts containing “serious insults to this Court and its members” and that the evidence pointed to the use of bots to reach a substantial audience which was being funded by a group of businessmen who provided resources to the participants of the organization behind those attacks. As part of the investigation, the police concluded that the seizure of devices and inspection by forensic experts and the questioning of the individuals under investigation would be required in order to identify the authors of the social media posts containing insults against the Court and its members.
The content of the social media posts was identified by the police, Justice Moraes in the inquiry and during a Supreme Court hearing. The police reported that the accounts had posted content “stating that the [Supreme Court] is a disgrace and calling for impeachment proceedings against its Members”. Justice Moraes had identified that some of the social media posts included statements such as “Rape and kill the daughters of the menial Justices of the Supreme Court” and “How much is it to shoot at close range each [expletive] Justice of the Supreme Court that would want to end with criminal sentences being served once upheld by an appeals court? If they [do so], we are left with throwing gasoline and igniting a fire at the plenary session room of the Supreme Court, with the Barbie Justices inside”. In the Supreme Court decision, Justice Moraes had noted that in March 2019 prosecutors in São Paulo had foiled an assassination plan against a sitting Justice, after they had infiltrated a dark web forum. He added that prosecutors were also conducting a separate investigation after a device was thrown and exploded on the pavement in front of the home of one of the justices in a different incident.
On June 18, 2020, the Supreme Court decided on a related constitutional challenge (ADPF 572). This case had been brought by political party Rede Sustentabilidade against the provision of the Rules of the Court used as a basis for the criminal inquiry, and against the inquiry itself. The Supreme Court held that the inquiry was a necessary institutional response against attacks from those seeking to displace the Court and undermine judicial independence and who published threats to its members on social media and deliberately spread disinformation as a strategy to break with the established constitutional order. The Chief Justice and Justice Moraes took part in the Supreme Court’s deliberations on that constitutional challenge after the Supreme Court refused a recusal application.
By ten votes to one, the Supreme Court had rejected the constitutional challenge. However, in statements that the Judges themselves had classified as non-binding dicta they noted that the criminal inquiry should adhere to certain constraints, including that the inquiry’s remit should be limited to speech which exhibits “actual risk to the independent of the judiciary … through threats to members of the Supreme Court and their family members; engages in assaults against established political power, against the rule of law; and against democracy”. These statements also noted that the inquiry should respect the constitutionally protected right to freedom of expression and of the press and so should exclude from the scope of the inquiry journalistic articles and posts, shares or other kinds of speech (including personal details) on the internet – so long as this speech is not part of a mechanism for funding and dissemination en masse on social media.
Moraes J reviewed the special master’s report. The central issue before the Court was what action should be taken in respect of the social media posts.
The Prosecutor-General argued that the Court should limit itself to ordering the police to formally question individuals under investigation and ordering service providers to preserve posts and produce subscriber data on three Twitter accounts.
The Court found that the evidence demonstrated a “real possibility of the existence of a criminal conspiracy … concerned with the dissemination of fake news; offensive attacks on individuals, to the authorities and to the institutions, among them the Federal Supreme Court, with patent content of hatred, subversion of order and incentive to breach institutional and democratic normality”. The conspiracy had been referred to in testimony from members of the House of Representatives as being run by a “Hate Cabinet”. The Court relied on that testimony and a report filed by the police which demonstrated that there were eleven Twitter accounts which followed each other and that “those accounts started to post negative content and attacks on the [Supreme Court], from 7 November 2019. Initially, not using hashtags, or using the hashtag #STFVergonhaNacional [ie Supreme Court national disgrace]”.
Accordingly, the Court ordered a number of measures be implemented against the individuals under investigation, including obtaining their bank records and searches and seizures at their homes and other locations. It also ordered the suspension of the accounts of individuals under investigation on Facebook, Twitter and Instagram, which it added was “necessary to halt the speeches with hateful content, subversion of the order and incentive to break institutional and democratic normality.”
After the Supreme Court’s ruling on June 18, 2020, Justice Moraes issued another order. Referring to a news article which reported the impugned accounts were still online, it noted that Twitter had informed the Court that it was unable to comply with an order generically directing that accounts be suspended as it could not determine which accounts should be suspended based on the information (names and taxpayer identification) initially provided to it by the Court. The new order listed account handles for each of the individuals and gave Twitter 24 hours to comply.
After this second order, a police report was entered into the court record stating that the Twitter and Facebook accounts were still accessible by those outside Brazil or those in Brazil using virtual private networks with servers abroad, and that, on Twitter, users were able to access the accounts by just changing their location to anything other than Brazil in their preferences. Accordingly, on 28 July 2020, Judge Moraes reviewed that report and found that Twitter and Facebook had not fully complied with the court order, and imposed a BRL20,000 fine for noncompliance on Twitter and directed Twitter to block content from the accounts “irrespective of the means used to access the posts, or the IP [address] used, be it from Brazil or elsewhere”.
Twitter and Facebook have stated they appealed the order, but the record is sealed and the appeals are thought to be pending.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this matter, the Supreme Court has been criticized for lacking jurisdiction to preside over a criminal inquiry and for conflating the roles of police, prosecution and the judiciary. In addition, the judgment does not provide sufficient analysis of the content of the social media posts in question and places the severe restriction of a prior restraint on social media posts by individuals under investigation before applying lesser restrictions. There is also no assessment of the Court’s authority to order the suspension of social media accounts on a global scale.
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.
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