GNI Statement on Brazil’s Recent Decisions on X and VPN use

September 19, 2024  |  News, Policy

The Global Network Initiative (GNI) is concerned about aspects of recent decisions made in the context of the Brazilian Supreme Court inquiries on attacks to democracy, and calls on relevant Brazilian judicial, legislative, and executive branch officials to ensure that the design and implementation of Brazilian law is consistent with the international human rights principles that Brazil has subscribed to and meaningfully demonstrated leadership on.

GNI’s 100+ academic, civil society, investor, and tech company members come from different stakeholder groups and operate across the world, including in Brazil. We have long advocated that the regulation of information and communication technology (ICT) products and services should be guided by international human rights law, including the principles of legality, legitimacy, necessity, and proportionality. We have reiterated these points in our inputs on Lei Brasileira de Liberdade, Responsabilidade e Transparência na Internet (Brazilian Law on Internet Freedom, Responsibility and Transparency) last year and under the prior administration. GNI has also actively engaged with the Brazilian government this year in conversations related to both domestic and multistakeholder approaches to disinformation and other digital challenges.

Brazil has long exemplified and exercised leadership on Internet governance, including through its domestic Marco Civil legal framework, its multistakeholder Internet Steering Committee, and its support for the NETMundial and NETMundial+10 processes. Brazil has also pioneered Internet access in South America, and is a protagonist in matters of digital markets, innovation, and privacy in the region. As such, the government’s efforts to address disinformation and other digital challenges, including implementation and interpretation of the Marco Civil, are being closely watched around the world.

GNI appreciates the critical need for accountability and ongoing vigilance regarding the protection of democratic institutions and processes to address disinformation and violence. We strongly believe that in order for such efforts to be successful and sustainable, they must be transparent, clearly reasoned, proportionate, and judicious. We encourage Brazilian political actors to take these principles, Brazil’s international stature, and the country’s international law obligations into account while pursuing these challenges.

In particular, GNI is concerned about several aspects of the decision issued by Brazilian Supreme Court Justice Alexandre de Moraes against X Corporation (please note: X is not a member of GNI). Given the significant rule of law, freedom of expression, and privacy implications of these rulings, we hope the full Supreme Court will carefully review these matters to determine whether they meet the legality, necessity, and proportionality principles.

• Right to Appeal – Notice to impacted individuals and the right to appeal a ruling are axiomatic aspects of the rule of law. While acknowledging and regretting the fact that not all of the relevant aspects of the ruling have been made public by the Court, the apparent determination by the Supreme Court First Chamber that a social media platform cannot appeal a decision requiring them to block certain accounts raises serious concerns about the extent to which these rule of law principles are being safeguarded.Putting aside the fact that Justice de Moraes made this determination in the context of reviewing his own underlying blocking orders, declaring that only individuals whose accounts are blocked may appeal such orders assumes that these individuals will always have the notice and recourse necessary to do so, ignores the independent impacts that such orders have on platforms, and disregards the freedom of opinion and expression rights of the hundreds of thousands of users whose ability to access information is restricted and whose willingness to express their views may be unduly chilled.GNI has consistently advocated for ICT intermediaries to take into account and advocate on behalf of their users’ rights to freedom of expression and privacy around the world. Governments should always allow for appeal mechanisms against decisions that adversely impact user rights, including in cases of content takedowns or service blocking.
• Access to VPNs – Justice de Moraes’ 30 August decision contained two provisions intended to severely restrict the use of Virtual Private Networks (VPNs). The first, which would have ordered app stores to restrict the availability of VPNs to all users in Brazil, was later reversed. The second, which threatens any individual who uses a VPN to get around the order blocking X with heavy financial penalties, is still valid.VPNs are tools that allow users to navigate the Internet in a manner that enhances the privacy and security of their data, personally identifying information, and online activities. While such tools can be misused, the vast majority of VPN users are law abiding individuals who use them for reasons that are protected by law and help enhance their rights.For these reasons, cutting off access to VPNs and threatening individuals who use them are tactics much more commonly associated with authoritarian governments, not democratic, rule-of-law abiding ones. While some users may utilize VPNs or other tools to access content that is otherwise blocked, the impacts of restricting access to VPNs broadly are disproportionate to the marginal increase in compliance that this might ensure.

GNI hopes and trusts that these elements of the recent rulings will be reviewed and that the rule of law principles that are enshrined in Brazilian law and the country’s international human rights commitments will be duly taken into account. We remain committed to continuing our good faith engagement with various sectors of the Brazilian government and Brazilian society, in order to continue building collaborative, rights-respecting solutions to relevant digital challenges.