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Some learnings from the blocking of WhatsApp in Brazil

This week a Brazilian judge ordered all telecommunication operators in Brazil to block access to WhatsApp in the whole country for 48 hours. The Sao Paulo Court of Justice said that the decision was taken after WhatsApp (which is owned by Facebook) failed to respond to a court request from July 2015 to hand-over information in a criminal proceeding, which was unsuccessfully repeated in September 2015. In the end, the order to block access toWhatsApp was lifted after half a day but it highlights a major challenge of the growing use of digital platforms: As essential parts of our everyday life and communication they have thechallenge to operate globally accessible services while at the same time have to respond to justified demands by national authorities to protect the security of their citizens and prevent crime.

This is no new challenge, the friction between privacy and security has been around since the first telegrams and telephone calls have been made in the 19th century. The solution has been implemented by law makers and telecommunication operators for many decades: Both fundamental rights, privacy of users and security of citizens need to be balanced and taken seriously as both are important prerequisites for the working of democratic societies. This means also, that there is no doubt that all private companies need to live up to their responsibility and respect the laws of the countries where they operate.

It is simple: With great power comes great responsibility. Mark ZuckerbergFacebook´s CEO, was reminded of that last September by the German Chancellor Angela Merkel on the side-lines of the UN General Assembly in New York when she asked him if his company could be more cooperative for taking down hate speech comments on Facebook´s social network in Germany. “Yeah” was reported by media as his answer.

It is therefore not convincing that some voices have painted the Brazilian case as a “Brazil vs. the free and open Internet”-issue. Such views do not see the full picture and shy away from the fact that this is not about a single case or country, but a growing problem worldwide:

  • In both, Belgium and FranceSkype is under legal scrutiny to determine whether its service should be subject to national laws on telecommunication, which requires access to user’s information if ordered by courts.
  • In Germany, a first instance administrative court ruled Google’s Gmail to be a telecommunication service, and therefore, German telecommunication law should apply for these services (read our recent post on this issue).

–          In Italy and UK courts have requested blocking of domains to prevent users to access illegal services.

There are more similar cases from Denmark, France, Iceland, India, Israel, Japan, Norway, Paraguay, Russia, Spain and UK. The multistakeholder Internet & Jurisdiction Project has compiled an overview over the last years, which show the dimension of the issue and also what frustrated national authorities often do: obliging local telecommunication operators to block services.

All that indicates that major global Internet Service companies do not seem to want to live up to their local responsibility and legal obligations. Taking just the moral high stance of “defending our user’s privacy” and complaining about governments and administrations is not enough. It is not that simple: In fact, Brazil has just last year implemented a new law for the Internet (“Marco Civil da Internet”), which requires digital service providers to cooperate and to provide any information requested by Brazilian authorities through judicial orders. This obligation specifically applies to local and foreign companies.

It is hard to imagine the public outcry if any of the Brazilian mobile operators like Vivo, Oí or Claro would have refused to follow a court order in a criminal case. Nothing else can be true for Internet Service companies. Telefonica believes that no company, local or foreign, can fail to comply with legal and regulatory frameworks of the countries in which it operates. Even less, they can fail to comply with judicial orders by courts.

The reaction to block a service for millions of users for non-compliance is surely debatable and the anger of users is understandable. However, it is important not to see only the symptoms of the problem and it is unfair to blame the wrong ones, like communication operators.

Instead, those that do not comply with local and national laws and provoke such unfortunate situations should ask themselves if they should not climb down from their moral high-ground and face the fact that such irresponsible and unlawful behavior will not be sustainable in the future.

With great power comes great responsibility – press the “Like”-button if you agree.

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Enrique Medina

Chief Policy Officer of Telefónica