Brazilian Judicial Branch v. Telegram (and Bolsonaro)

On March 18, 2022, the Brazilian Federal Supreme Court Justice Alexandre de Moraes suspended Telegram’s functioning in Brazil through an individual injunction. The order agreed to a request made by the Brazilian Federal Police. The police’s justification endorsed in the decision concerns the incessant social media platform’s behavior ignoring the solicitations originated from national investigative and jurisdictional officers. In brief, the platform was blocked because its owners ignored their duty to cooperate with the Brazilian state in the repression of the illicit activities committed over the platform. As a company that offers its services in Brazilian territory, Telegram cannot avoid cooperating with national law-enforcement authorities.

This is a simple and direct reading of the factual and legal reality involving the conflict between the Brazilian Federal Supreme Court (STF) and Telegram. However, only analyzing the issue’s core misses one of its essential surrounding elements: the direct interest of President Jair Bolsonaro in the free operation of the platform and the growing antagonism between him and Justice Alexandre de Moraes. If, on the one hand, Telegram’s unjustified refusal to cooperate with the Brazilian authorities seems to constitute a valid legal basis for its blockade, the personalization of disagreements involving Alexandre de Moraes and Jair Bolsonaro may represent a dubious point regarding the discussion of the measure’s legal basis.

This blogpost will present the analytical context of the case to argue that the Telegram blocking order ruled by Justice Alexandre de Moraes is compatible with the Brazilian legislation and does not breach the 1988 Constitution. For this, I will present the growing concerns regarding the monitoring of social media platforms in Brazil by legal authorities in light of the 2022 elections (i), the decision’s main controversial points (ii), and the reactions by the federal government (hereinafter, the Union), Telegram, and the STF (iii).

One of many attempts to oversee the operation of social media platforms

It is important to emphasize that the order issued by Justice Alexandre de Moraes was not the first measure enacted by the judicial branch regarding Telegram. After the 2018 elections, when the lack of effective regulation and oversight about the utilization of direct communication social media apps led to a massive disinformation campaign by then-candidate Jair Bolsonaro through WhatsApp, the Brazilian Superior Electoral Court (TSE) established agreements with numerous platforms (including Twitter, TikTok, Facebook, Kwai, WhatsApp, and Google) addressing mutual cooperation in order this scenario would not be repeated in 2022. After the Capitol Riot promoted by supporters of former President Donald Trump (USA), the Brazilian authorities’ concerns only increased.

Among the main social media platforms operating in the country, Telegram was the only one which refused to cooperate. Based on an ultra-liberal idea of freedom of expression, its creator refuses to moderate any kind of speech in his social network. This behavior has even caused embarrassment to the platform’s maintenance in some countries, such as Germany. There were several opportunities in which the TSE, through its former President, Justice Roberto Barroso (who is also a STF’s member), tried establishing a dialogue with Telegram. Those opportunities were ignored and the app remained operating in Brazil without reporting to administrative or judicial authorities.

President Bolsonaro, on the other side, changed WhatsApp for Telegram as his favored toll for communicating with his supporters due to the series of restrictions imposed by the former. His public group on the platform has more than one million people registered to receive daily news (dozens of them) about Bolsonaro’s activities. The electoral authorities’ apprehension with this modification is that, given Telegram’s unwillingness to cooperate, the disinformation environment of 2018 elections can rise again in 2022, only with a digital address change. Today, more than 53% of Brazilians smartphones have the Telegram app.

The blocking order was taken by the STF, but as seen, the discussions held in both judicial branches are correlated. This is because Justice Alexandre de Moraes, next August, will be the TSE’ Chief Justice. He will be responsible for conducting the 2022 general elections, scheduled for October. In other words, Moraes issued a decision that will have practical side effects for his performance organizing the future Brazilian elections. The 2022 electoral implications seem clear.

A measure of last resort with some sensitive points

In a few words, the legal basis presented in Alexandre de Moraes’ decision to block Telegram regards its refusal to cooperate with Brazilian authorities repressing crimes. In particular, the Federal Police, after exposing several times that the platform refused to cooperate to combat sexual crimes against children and other serious offenses, requested the suspension based on Telegram’s omission to banish Mr. Allan dos Santos’ platform’s profiles, a digital influencer who is being investigated for a series of supposed crimes committed against STF. In the decision’s report, Moraes also recalls the many opportunities when the platform ignored the TSE’s requests for cooperation.

The decision was grounded in Brazilian Internet Bill of Rights’ Article 10, §§ 1º and 2º, and Article 12, III. According to these norms, the social media platforms operating in Brazil must temporarily save metadata records of their users’ activities and send these files to the authorities, when requested. Disobedience to these determinations may cause the platform’s suspension. However, the decision does not contemplate possible constitutional implications. For example, did the order violate the 1988 Brazilian Constitutional’s rights to freedom of expression or free enterprise? This lack of constitutional analysis was criticized by some Brazilian experts. Although I agree that it would have been best if Justice Alexandre de Moraes had constitutionally justified his opinion, there are reasons to argue that the 1988 Constitution was not breached at all.

First, there is no violation of Telegram users’ freedom of expression because this is only one of the various private message apps operating in Brazil without direct remuneration. The impossibility of accessing Telegram can be solved with WhatsApp, for example, the most popular country’s platform. Although this last service has more restricted rules for identifying metadata of users and messages, they exist to comply with authorities’ requests. Second, the Telegram’s suspension is unable to violate the platform’s freedom of enterprise because this right cannot serve as a shield for non-compliance within the legislation. All people and companies in Brazil must fulfill civil, tax, administrative, and criminal obligations and are subject to legal rules compatible with the Constitution. Invoking freedom of enterprise to flinch compliance with the law means seeking a differentiated treatment towards other companies, which, in turn, could constitute a violation of constitutional isonomy. The fact that Telegram operates in a digital environment does not exempt it from submitting to Brazilian sovereignty. The judiciary’s challenge is how to design tools to assert its authority over digital platforms, considering that the internet exceeds the classical notion of territoriality.

The decision’s repercussions

The developments after the decision were twofold. First, in contrast to Telegram, which did not appeal against Moraes’ order, President Bolsonaro ordered the Union’s Attorney General’s Office to appeal against it. The Union’s procedural legitimacy to appeal in this case is highly debatable, since no federal government agency was directly or indirectly affected by an order addressing a foreign company. On the contrary, the Brazilian Federal Police was the request’s plaintiff. The Union’s behavior reveals two things: Bolsonaro’s reiterated desire to avoid any kind of state monitoring of social media platforms and its opposition to any judiciary’s movement aiming to build devices preventing a possible disinformation campaign in 2022 elections.

Telegram followed Justice Moraes’ orders. After the platform’s CEO apologies to STF, Telegram deleted the irregular digital profiles reported by the Federal Police, nominated its legal representative in Brazil, presented the measures it will take to monitor the activities of its users, and committed to cooperate with Brazilian authorities. Justice Alexandre de Moraes, on March 20, 2022, ordered the platform to unlock.

For now, it is impossible to predict Telegram’s future relationship with the Brazilian judiciary, especially in view of the 2022 elections. It is feasible that the blockade has served to rouse the company’s will to cooperate with local authorities, but it is too early to make any predictions about that. While Telegram has spent years refusing to assist the judiciary, platforms like YouTube are updating their terms of service to monitor the Brazilian upcoming elections according to TSE’s guidelines. Justice Alexandre de Moraes has sent his most serious message so far and its repercussions were according to his purposes. It remains to be seen whether this was enough or if other moments of tension are yet to come.