Shooting the Messenger: The Misfortunes of Google Brazil and the Need for Intermediary Protections

"Judge orders arrest of president of Google's operation in Brazil"

The headline was bizarre enough, but what followed seemed to come straight out of The Onion: "... for failure to remove YouTube videos that attacked a mayoral candidate." And the cherry on top: the judge also ordered "a statewide, 24-hour suspension of Google and YouTube."

In other words, after someone had posted questionable videos, the law came down on none other than the middleman. Simply for hosting an allegedly defamatory video, it seems absurd for a judge to order Google to be shut down for a day—and on top of that for an executive to get arrested. Brazil proves once again why countries around the world need strong intermediary safe harbor laws like those in the United States.

Judge Flavio Peren from the Brazilian state Mato Grosso do Sul ordered for the arrest of Google Brazil's president after the company refused to take down two videos that targeted a mayoral candidate. The critical videos, according to the judge, were insulting and defamatory, therefore violating Brazil's severe election laws. The judge ruled that Google had committed the crime of "disobedience" (see Art. 330) by not taking down the videos. Google appealed the ruling, which had also ordered the company to shut down its site for twenty-four hours in the state. This isn't the first time Google was hit with such charges; earlier this month, a court in the state of Paraná issued a similar arrest order on another Google exec for not taking down a YouTube clip aimed at a separate mayoral candidate. This ruling, however, was overturned.

Brazil has a notably strict election code. The videos in question were found to violate the law's Article 326, which criminalizes the violation of one's "dignity" during an election. (Despite the stringent law's focus on "dignity," Brazilian elections are currently host to dozens of people running under assumed superhero and celebrity names.) Though Google served as merely a platform for the videos in question, it was nonetheless the target of the election court's orders.

Google's recent Transparency Report, which exposes the number of government takedown requests, ranks Brazil at the top of the list, with 194 content removal requests in the second half of 2011. As Google's notes show, a number of those requests were defamation charges around election season.

Apart from the absurdity of the judicial orders in the last month, these cases highlight the need for strong intermediary protections around the world. Governments and individuals have often shot the messenger in order to curb speech, especially when speakers are anonymous. Like many countries outside the United States, Brazil does not have any strong laws to protect online service providers that host third-party speech and content. When hosts are held liable for their user's actions, incentives to host speech are dampened, legal costs rise, and innovation is chilled.

In the United States, we have a crucial law that protects online services that host speech: Section 230 of the Communications Decency Act (CDA 230). Though most of the CDA harmed speech and was found to be unconstitutional, Section 230 survived, relieving sites of liability for their users' content. In other words, under CDA 230, only users have legal responsibility over what they post.1 This not only allows sites to innovate and scale without spending hoards of money on vetting all of their content (or, worse, automatically censoring it), but it also prevents critics from sending improper notices to the content host in an attempt to censor.

Brazil has been trying to address this issue through Marco Civil, a sweeping law that aims to promote Internet freedom, protect speech and privacy, and establish much-needed safe-harbor protections for intermediaries. Both Google and Facebook spoke out in support of the bill, though a vote on the bill was recently postponed. While there are a number of ways that Marco Civil could be improved to be more in alignment with international standards for protecting freedom of expression, it would at least provide some legal shield for internet intermediaries that host controversial content.