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Brazilian Judge Rules Anonymous Apps Unconstitutional

By: Belén Marty - @belenmarty - Aug 21, 2014, 2:39 pm

EspañolA civil court in Brazil’s Espíritu Santo state has ordered the removal of the Secret app within the next 10 days from Google’s and Apple’s application marketplaces. Tuesday’s ruling applies to smartphones of Brazilian users, with the stated goal of cracking down on virtual bullying.

Prosecutor Marcelo Zenker, who acted on behalf of the Public Prosecutor’s Office of Espíritu Santo, filed the request on Friday, August 15. In turn, the court has now fixed a R$20,000 (US$8,855) fine for failure to comply with the ruling.

The Secret app is a widely popular social-networking tool in Brazil, Russia, and Israel. Since April, Brazilians have been using it to achieve anonymity and publish hidden messages. The user can choose if he wants to show it to his friends, friends of friends, or everyone.

However, according to Judge Paulo Cesar de Carvalho, the right to freedom of expression loses its constitutionality when conducted under the cover of anonymity. He cites Article 5 of the Brazilian Constitution, which states that the “expression of thoughts is free, but anonymity is forbidden.”

Secret app screenshot.
Secret app screenshot. (PanAm Post)

“Freedom of expression is not an absolute right; there are several cases in which it collides with other basic rights or constitutionally protected collective interests, which are equated by a balancing of interests,” the judge said in his decision.

The judge also affirmed that the right to freedom of expression sometimes clashes with rights to “honor, intimacy, equality, and human dignity, and even … the protection of infancy and adolescence.”

The prosecutor remarked that anonymity is totally incompatible with the disproportionate damage that the messages may inflict on the honor and reputation of any person.

With just a smartphone Android or Apple’s iOS and an e-mail address, an individual can start using the application, which is not the only one of its kind.

Zenker says that “the constitutional requirements of the right to the image, intimacy, privacy, honor, and, above all things, the dignity of the human being are being flagrantly violated” by both companies (Google and Apple) “through the offer of the Secret app to the users.”

Companies Hold Their Silence 

Google has affirmed that it has not been officially notified yet, and Apple has yet to respond. The Secret app remains available via both stores in Brazilian territory.

The ruling also demands the removal of Cryptic, a similar application for users with the Windows Phone.

In April, Brazil unanimously adopted a civil rights law for internet governance. The law, known as the Constitution of the Internet, compels multinational companies such as Google to abide by the rulings of national courts when Brazilian users are involved.

Censorship Anyone?

Robert Chioca of the Mises Institute Brazil believes that this resolution demonstrates once again what the country has been suffering through in terms of freedom of expression: “This is nothing but censorship and a violation of property rights.”

He points out that this is hardly the first time that freedom of expression has been restricted in Brazil: “There has been no freedom of expression for a long time. Once, the game Counter Strike was forbidden. Also, humorist João Kleber and RedeTV channel have been censored.”

He warns that censorship has been formalized, and that it’s getting worse with the election approaching: “The biggest censorship is happening right now, during the pre-electoral months. The Electoral Law forbids us from sharing opinions or interviewing one candidate without interviewing the rest of them.”

Chioca is referring to Article 28, subsection III, of the 23,404 resolution of 2014. It outlines the approved legal practices and behavior during the electoral period. Radio and TV stations cannot, during their regular programming, “offer privileged treatment for a candidate, political party, or professional association.”

Last month, for example, the Superior Electoral Court of Brazil ordered Google to remove an ad that attacked the current president and candidate for re-election, Dilma Rousseff.

Translated by Adam Dubove.

Belén Marty Belén Marty

Belén Marty is the Libertarian Latina, a journalist based in Buenos Aires, Argentina. She has lived in Guatemala, Jordan, the United Arab Emirates, and the United States and is a former candidate for local office with Argentina's Libertarian Party. Follow @BelenMarty.