Temporary restraining order shuts down WhatsApp in Brazil for 48 hours

Misinterpretation of Brazilian Internet Law creates uncertainty to ISPsOn December 16, leading Brazilian mobile carriers were ordered to shut down WhatsApp for 48 hours. The decision was issued in a criminal lawsuit that is under seal. A copy of the court order is available on the Internet, and refers to the Criminal Organization Act (Federal Law 12850/13), similar to the US RICO Act. At the moment, there is little information available, but it appears that the order was issued as a penalty for contempt regarding previous discovery orders requesting evidence for the lawsuit. WhatsApp does not have an independent local office or dedicated servers operating in Brazil, which nevertheless does not exclude ISPs from compliance with Brazilian laws.This trial court decision is a bad precedent for Internet Apps in Brazil. It seems to be a misinterpretation of Brazil’s Internet Bill of Rights (the “Marco Civil” law), particularly of the section that refers to the protection of personal data and communications secrecy (Articles 10 to 12). The severe sanction of temporarily banning the service as a penalty for contempt to collect and retain data from users is a very unique and harsh interpretation regarding the breadth of the statute. The nationwide block of the app is an unprecedented measure, and further decisions shutting down other applications will create a scenario of uncertainty that will be very disruptive for future investments for ISPs. It also raises concerns regarding the technical challenges for compliance in a timely fashion, as well as data privacy laws from its country of origin.On a more positive note, despite the continental size of Brazil, with nationwide jurisdiction trial courts spread all over the country, appellate courts have been very effective in reviewing trial court decisions and granting injunctions. Similar TRO’s were reversed, or avoided, with specific strategies in accordance with existing laws and international judicial cooperation agreements. The same statute used as basis for the TRO in question, the “Marco Civil Law”, has provisions guaranteeing service continuity as an inherent principle of the Internet use in Brazil (Arts. 3 and 6).Although the decision was apparently reversed on December 17 by the São Paulo Court of Appeals, the precedent created by such TRO, and the significant attention it received from media outlets worldwide, allows us to understand that similar decisions could appear in a near future. Therefore, Internet Service Providers should take into consideration establishing contingency plans and litigation strategies while operating in BrazilOur firm has a team of specialized attorneys that have been in the forefront of this type of litigation in Brazil. We have successfully reversed similar injunctions in leading cases for our clients, such as UBER and SECRET, fighting for the proper construction and implementation of the “Marco Civil” Law.