Is Brazil the censorship capital of the Internet? Not yet

Last week, Google published its first set of global government request statistics, showing how many demands it receives to remove content from its servers or hand over private information on its users. Transparency by Internet companies about how much information they are compelled to remove or release helps us understand how online journalism worldwide may be affected by state actions. Although Google acknowledges its initial figures are “imperfect,” they are an important first step, not least because they might encourage other companies to provide the same figures.

But what can we learn from the appearance of certain countries in Google’s tables? In particular, what of Brazil, which currently tops both data request and content removal charts for the sheer number of requests? Are Brazilian online journalists, their sources, and the availability of their work at greater risk of censorship and exposure than elsewhere in the world?

Not necessarily–but the reasons point to subtler ongoing threats to Brazilian online journalism. And new developments in Brazil’s Internet policy signal a far more worrying potential future: If a new Internet bill is adopted in its current form, Brazil might drop from the Google charts only to leap up the tables of real dangers to online journalism.

At first glance, the Google data, as published on its Web site, certainly don’t look good for Brazil. Google says it received over 50 percent more requests from Brazilian authorities for content to be removed than those of the next highest country, Germany. Brazil also beat out second-place United States in personal data requests, despite having only 72 million Internet users in 2008 compared to the 230 million in the States.

Google itself played down the significance of the data, saying that Brazil’s high ranking relative to other counties was primarily due to the relative popularity of Google’s own Orkut social networking site (which still beats Facebook on the Brazilian Internet, according to the Web popularity indexer Alexa). Brazilian prosecutor Priscila Schreiner denied that the Brazilian state was censoring the Internet, saying that the high figures were related to investigations into child pornography and racism, The Associated Press reported. “We need the data behind these crimes,” she said.

Neither Google’s nor Schreiner’s explanations give the whole story, however. The Google statistics specifically exclude claims connected to child pornography. Other countries with anti-racism laws (such as Australia and the UK) show nowhere near Brazil’s level of government demands.

Nor do inquiries connected to Orkut explain the high figures. Google doesn’t break down demands for personal data by category, but it includes details on which service was targeted for removal requests. Besides more than 200 Orkut removal orders, Brazilian government demands have also taken down more Gmail accounts and more Blogger sites than any other country. Brazil is also in the top 10 for government-mandated takedowns of YouTube and Web search items, both services that are unrelated to the popularity of Orkut in Brazil.

I spoke to São Paulo Internet lawyer Marcel Leonardi to find out why he thought the figures for Brazil were so high. He pointed out that the numbers covered, in Google’s words, “statistics on court orders for the removal of content, which often originate from private-party disputes.” Leonardi says, “It is very likely those numbers are high because of the number of private lawsuits [in Brazil] regarding Internet content. Filing a lawsuit to demand that content be taken down is neither complicated nor expensive in Brazil.” In fact, under certain circumstances, he says, such requests can be filed directly in Brazil’s equivalent of a small claims court.

The prevalence of such court orders explains why Brazil’s Google statistics are so disproportionate. In most comparable countries, such litigation would be the last step to remove content or uncovering an anonymous speaker; in Brazil, obtaining a court order can be the first port of call. Non-judicial complaints by private parties, the usual path for a third party in other countries, were not recorded by Google in these statistics, but Brazil’s court orders were.

It also explains the matching level of requests for personal data. When a plaintiff files a suit against an Internet to remove content, says Leonardi, they will often include a matching request to hand over personal data in order to reveal the identity of the original poster. (Brazil’s protection of free expression does not include complete anonymity, which is explicitly “forbidden” under the constitution, although pseudonyms such as forum user names are acceptable under Brazilian federal law.)

The opportunity for litigants to swiftly challenge content and reveal anonymous sources has long affected the work of journalists in Brazil. CPJ’s research has shown that criminal and civil defamation lawsuits against the Brazilian media have numbered in the thousands over the last five years. As CPJ reported in Attacks on the Press in 2009, one congressman, Edmar Moreira, filed more than 44 suits against at least 38 journalists. Lower court judges routinely interpret Brazilian law in ways that restrict press freedom. On the Internet, courts have ordered Web sites to remove stories on judicial corruption, business dealings, and other matters of public interest.

A recently proposed alternative to this regime, however, could prove an even greater impediment for online reporting, although it might lower Brazil’s position in Google’s government request rankings.

Brazil is looking to introduce new regulation of the Internet. Draft language for a proposed new “Civil Rights Framework for the Internet in Brazil” would introduce an even more streamlined way for critics to restrain online reporting, one that would no longer involve even minimal prior judicial oversight.

In Section IV of the current draft, Web site hosts would become liable for their users’ content if they do not immediately remove it after receiving notice of a complaint by a third party. The bill’s suggested procedure for dealing with such complaints seems to be modeled on the “notice and take down” system in the controversial U.S. Digital Millennium Copyright Act, or DMCA. In this and the Brazilian proposal, intermediaries such as Google are protected from liability under copyright law, but only if they take down content after receiving a notice of complaint. The original content posters can request the content be restored, but only after filing a counter-notice. 

In the United States, such preemptive removal of content is restricted to claims of copyright infringement; other legal threats toward hosts to delete content from the Internet on other grounds must pass through the courts (or else be voluntarily removed by the hosting company). Nonetheless, even limited to copyright complaints, the DMCA takedown procedure has been abused to silence critical speech and analysis.

The proposed Brazilian bill goes much further than the DMCA, allowing third parties to demand that content be taken down for any reason, including claims of defamation.

If the bill was to pass in its current form, Google and other providers would have every incentive to remove content after only a single complaint or risk becoming liable for the material themselves. It would no doubt lower the total number of Brazilian court requests to remove content because a court order would no longer be needed. Google’s charts would show Brazil’s figures dropping, even as the level of invisible threats to online journalism increased. As the president of Brazil’s National Newspaper Association, Judith Brito, notes, taking down content whenever someone feels they were attacked “is unconstitutional,” the Brazilian news outlet O Globo reported.

The draft of the bill is still available for public comment and criticism until May 23. Given its current language, Brazilian policymakers and Internet users should consider which is worse: remaining at the top of Google’s tables, or truly becoming one of the most efficient places to silence Internet reporting.