Case Summary and Outcome

The Federal Supreme Court (STF) of Brazil, in a ruling by Justice Alexandre de Moraes, suspended the social network Telegram in the country for failing to comply with judicial orders. The Court had ordered the platform to remove the account of a blogger who fled to the United States while under investigation for crimes including criminal organization, slander, defamation, insult, and racism. Despite being notified multiple times, Telegram did not comply with the Court’s orders. The Court emphasized that all companies, whether domestic or foreign, must follow Brazilian laws and judicial decisions, stressing that freedom of expression is not absolute and may be restricted to protect democracy and public security. After reporting to the Court that it had fulfilled all obligations, Telegram was reestablished in the country.

Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.

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Facts

On September 20, 2021, the Brazilian Federal Police sought the preventive arrest of Brazilian blogger Allan Lopes dos Santos, then host of the “Terça Livre” channel, which had over 800,000 subscribers at the time. Under Article 312 of the Brazilian Code of Criminal Procedure, preventive detention may be ordered, among other circumstances, “to safeguard public order, economic order, for the convenience of criminal proceedings, or to ensure the enforcement of criminal law when there is evidence of the crime’s occurrence, sufficient indications of authorship, and a risk posed by the accused remaining at liberty”.

According to the Federal Police, dos Santos presented himself as a journalist on social media channels as a pretext to “attack members of public institutions, discredit the Brazilian electoral process, reinforce political polarization, and incite hostility within Brazilian society by undermining the credibility of the branches of government, among other crimes”. [p. 2 of the October 2021 ruling] The police report also described dos Santos’s behavior as habitual and alleged that he had committed offenses under Article 2 of Law 12,850/2013 (“Promoting, establishing, financing, or joining a criminal organization, either personally or through an intermediary”); Articles 138, 139, 140, and 286 of the Brazilian Penal Code (slander, defamation, insult, and incitement to crime, respectively); and Article 20, § 2º of Law 7,716/1989 (inducing or inciting discrimination or prejudice based on race, color, ethnicity, religion, or national origin through mass media, social media platforms, the internet, or any form of publication). [p. 2 of the October 2021 ruling]

Dos Santos had also attracted police attention in relation to another incident – the gatherings in front of Brazilian Army barracks advocating for military intervention and the return of the dictatorship on April 19, 2020. That event led to the Prosecutor General’s Office (PGR) requesting the initiation of Inq. 4.828/DF. The PGR also requested measures such as search and seizure operations and the lifting of banking secrecy against dos Santos, who was allegedly involved in the purportedly criminal acts. [pp. 3-4 of the October 2021 ruling] According to a statement from the Prosecutor General’s Office, “[t]he administrator of the Terça Livre channel, Allan dos Santos, used a tweet to indirectly defend a military coup during the participation of the President of the Republic in the April 19 demonstration. If I understood correctly, what he is saying is that people cannot be prohibited from advocating for intervention. If that happens, then we really do need an intervention” … Days later, at the end of the anti-democratic demonstration on May 3, he posted a photo showing his middle finger in front of the Supreme Court, with the caption: ‘As the protest ends, I couldn’t miss the chance to share my opinion on those who tear up the Constitution’” (bold in the original). [p. 4 of the October 2021 ruling] The statement also noted that “[t]his is a profitable business, particularly when millions of people are exposed to videos with striking titles such as ‘Bolsonaro rebuts conspirators’, ‘Bolsonaro issues ultimatum to saboteurs and intrusions’, ‘Bolsonaro invades STF’, ‘Bolsonaro’s strength is greater than Congress and STF’, ‘Bolsonaro and the Armed Forces united in an agreement for Brazil’, and ‘STF decided to eliminate Bolsonaro’” (bold in the original). [p. 4 of the October 2021 ruling]

During the investigations, dos Santos moved to the United States, where he still lives.

On October 5, 2021, the Federal Supreme Court (STF), in a ruling by Justice Alexandre de Moraes, ordered the preventive arrest of dos Santos and directed platforms such as YouTube, Instagram, Facebook, and then Twitter to block his channels. The decision was based on the argument that these channels “are used as a true protective shield for engaging in illegal activities, and considering that Allan Lopes dos Santos has left the national territory during the investigations and continued committing his criminal actions from the United States, this has granted him a de facto criminal immunity clause, allowing him to persist in committing the crimes already identified by the Federal Police, without showing any restraint in spreading his criminal discourse”. [p. 15 of the October 2021 ruling]

After having his accounts suspended on other platforms, Allan Lopes dos Santos began using Telegram as his main channel of communication.

On January 13, 2022, at the request of the Federal Police, the STF ordered Telegram to block three profiles linked to dos Santos. The Court also required the company to provide information identifying the user, suspend any transfer of monetization funds, and disclose the total earnings generated by the channels. [pp. 10-11 of the March 2022 ruling]

When Telegram failed to comply, the Court reaffirmed its orders on February 15, 2022 and again on February 18, 2022. In the latter decision, the Court warned that the platform could be suspended in Brazil and imposed a daily fine of 100,000 reais (approximately USD 20,000 at the time) for each profile that remained active. [pp. 11-12 of the March 2022 ruling]

Telegram reportedly blocked the three channels only on February 26, 2022, but did not fulfil the other obligations set by the Court. [p. 12 of the March 2022 ruling]

On March 8, 2022, the Supreme Court ordered the blocking of a fourth channel associated with dos Santos and reiterated its previous demands: identification of the user, suspension of all financial transfers, full disclosure of earnings, immediate notification of any new accounts created by dos Santos, mechanisms to prevent the creation of new profiles, and a report detailing the measures adopted to combat disinformation and the spread of false content. The Court also requested a copy of the platform’s terms of use and a description of the penalties applicable to users engaging in unlawful behavior. [pp. 12-14 of the March 2022 ruling]

Despite being notified through multiple channels, Telegram continued to ignore the Court’s orders.

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Decision Overview

Justice Alexandre de Moraes delivered the unanimous decision of the STF. The central issue for the Court’s determination was whether Telegram’s actions – particularly its repeated non-compliance with judicial orders and attempts to evade Brazilian legal jurisdiction – posed a threat to democratic processes and public order serious enough to justify suspending the application in the country.

Justice de Moraes noted that activities conducted on the internet in Brazil are regulated by Law 12.965/14 (“Brazilian Civil Rights Framework for the Internet” or “Marco Civil da Internet”) and that such activities, according to Brazilian Constitution (art. 5º, XXXV) are also subject to the Judiciary, as in cases involving data or communication secrecy breaches, blocking illicit content, and obtaining evidence in legal proceedings. [p. 4 of the main decision – March 17, 2022] Law 12.965/14 also allows for the suspension or prohibition of activities by internet service providers and application providers when the provider fails to comply with a court order requiring the provision of connection and access logs, as well as personal data of users. [pp. 4-5]

Citing the police report, Justice de Moraes noted that Telegram had not complied with any orders from the Court, pointing out that “[t]he decision by the group that controls TELEGRAM not to submit to government guidelines based on the principles that govern its Privacy Policy has resulted in sanctions imposed by 11 (eleven) countries”. [p. 6] He added that “[t]he contempt for Justice and the total lack of cooperation from the TELEGRAM platform with judicial authorities is a fact that disrespects the sovereignty of various countries, not being a circumstance exclusive to Brazil, and has allowed this platform to be repeatedly used for the commission of numerous criminal offenses”. [p. 8]

Justice de Moraes commented that, given the platform’s non-compliance with court orders and its failure to contain fake news during the elections, the president of the Brazilian Electoral Court requested a meeting with the executive director of Telegram to discuss ways of cooperating in the fight against disinformation — a request that was also ignored by the platform. He cited other important rulings that had not been complied with by the platform, particularly those aimed at combating disinformation during elections, as well as the restriction of groups that violate laws and host activities such as drug and weapon trafficking, child pornography, neo-Nazi propaganda, document forgery, and other crimes.

In this context, Justice de Moraes found that “[t]he disrespect for Brazilian legislation and the repeated non-compliance with numerous judicial decisions by TELEGRAM – a company operating in Brazilian territory without indicating its representative – including those issued by the SUPREME FEDERAL COURT – is a circumstance completely incompatible with the current constitutional order, in addition to expressly contradicting a legal provision (Article 10, § 1 of Law 12.965/14)”. [p. 14]

Accordingly, the application was suspended in Brazil until it fulfills all obligations determined by the Court. It also directed companies such as Apple, Google, and other internet service providers to impose obstacles to prevent the use of Telegram, increasing the daily fine to 500,000 Brazilian reais per day. The Court warned that individuals using Telegram would also be subject to criminal and civil penalties, in addition to a daily fine of 100,000 Brazilian reais (approximately USD 20,000 at the time). [pp. 15-18]

On March 20, 2022, the Court reinstated Telegram in the country, as the platform reported to the Court that it had fulfilled all the required obligations. Among other points, Justice de Moraes stated that the platform had blocked all profiles indicated by the Court, appointed a representative in Brazil, and announced measures to combat disinformation. These measures included monitoring the 100 most popular channels in the country, tracking major media outlets, labeling specific posts as “inaccurate”, restricting posts from users banned for spreading disinformation, updating the terms of service, and promoting verified information. [pp. 5-18 of the March 20, 2022 ruling]

Although this lawsuit is confidential, the STF has been disclosing the rulings that are issued.

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