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STF Chief Justice determines immediate restoration of the WhatsApp service

Tuesday, July 19, 2016

The Chief Justice of Brazil’s Federal Supreme Court (STF), Ricardo Lewandowski, suspended decision of the single judge of the 2nd Criminal Court of Duque de Caxias (RJ) in order to immediately restore the application WhatsApp messaging service. According to the justice, the suspension of the service apparently violates the fundamental right of freedom of expression and communication (Article 5, section IX, of the Federal Constitution) and the current law on the matter.

The preliminary injunction was granted on the accusation of Breach of Fundamental Precept (ADPF) 403, filed in May this year by the Popular Socialist Party (PPS), originally against the decision of the single judge of the Criminal Court of Lagarto (SE) that ordered the block. On Tuesday, the party reported the occurrence of new court order in the same direction, this time from the single judge of the 2nd Criminal Court of Duque de Caxias (RJ), and requested the immediate suspension of that decision.

In granting the preliminary injunction, the president of the Federal Supreme Court noted that the Law 12,965/2014 (Internet legal framework) provides that the discipline of internet use in Brazil has, as one of its principles, the “guarantee of freedom of expression, communication and manifestation of thought, under the Federal Constitution”. In addition, this legal framework is concerned with "preserving the stability, security and functionality of the network."

Justice Lewandowski highlighted the importance of this type of communication, through instant messaging, even to subpoena orders or court decisions, as it is already being done in some cases. He pointed out that the very judge of Duque de Caxias marked, in her decision, that the messaging application has more than one billion users worldwide, and that Brazil is the second country with the largest number of users.

As to whether the company responsible for the service (Facebook) break or not encryption of messages, allowing access to its contents, the chief justice said this is a topic of high complexity, with no data and specific studies on the possibility of implementing measures such as the one prescribed by the judge of the 2nd Criminal Court of Duque de Caxias and supposedly violated by WhatsApp. Thus, in a preliminary analysis, the chief justice, by using the magistrate’s prudence, suspended what he saw as an act apparently little reasonable and proportionate, which, in addition to generating legal uncertainty, would leave millions of Brazilians without this communication tool.


Read the decicion (in Portuguese): Medida Cautelar na Argüição de Descumprimento de Preceito Fundamental 403


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