“The Jew Will Die For Defending Faggots”: A Public and Notorious Brazilian Freedom of Anonymous-Pseudonymous Opinion Case

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“Specializing in generalities.”

Moral crusades advance claims about both the gravity and incidence of a particular problem. They typically rely on horror stories and “atrocity tales” about victims in which the most shocking exemplars of victimization are described and typified. Casting the problem in highly dramatic terms by recounting the plight of highly traumatized victims is intended to alarm the public and policy makers and justify draconian solutions. At the same time, inflated claims are made about the magnitude of the problem. A key feature of many moral crusades is that the imputed scale of a problem … far exceeds what is warranted by the available evidence. Ronald Weitzer, “The Social Construction of Sex Trafficking: Ideology and Institutionalization of a Moral Crusade,” Politics Society 2007; 35; 447

That’s right, take away everybody’s fun. I myself am not going out tonight. There’s nowhere to go. I am going to have to stay at home watching the Million-Dollar Movie. Whorehouses are a healthy form of recreation that relieve those daily pressures. What ought to be outlawed is all the whoring going on in the federal capital. –Anonymous comment, Estado de S. Paulo Web site, November 30, 2007; see São Paulo Annals of Crime: “Crackdown on Hookerdom”

“Brazil cannot become an immense Big Brother in which privacy is abolished. Without privacy there is no liberty. Privacy is one of liberty’s most fundamental manifestations.”—Brazilian Attorneys Condemn O Globo “Scoop” as “Shocking, Illegal”

Consultor Jurídico (Brazil) reports: A Brazilian ISP will be ordered to identify the author of an anonymous comment left on the Web log of a Brazilian journalist.

A Telemar está obrigada a identificar o autor de comentários ofensivos do blog Querido Leitor, da jornalista Rosana Hermman. A decisão, tomada no dia 26 de novembro, é do juiz José Henrique Fortes Muniz Junior, da 3ª Vara Cível de São Paulo. A Telemar, empresa que oferece o serviço de conexão ao usuário anônimo, foi já intimada e ainda não recorreu. Pela sentença, tinha 48 horas para apresentar os dados, mas como a busca é complexa pode levar mais tempo.

Telemar is obliged to identify the author of anonymous comments on the Web log [“Dear Reader”] by journalist Rosana Hermman. The decision, taken on November 26, was handed down by Judge Fortes Muniz of the Third Civil Bar, São Paulo. Telemar, a company that offers Internet connections to anonymous users, has already been issued the order, and has not yet appealed it. According to the judge’s ruling, it has 48 hours to present the information requested, but since the search is complicated it might take more time.

The “journalist” and nuclear physicist’s principal career credit is as a producer of the (really, really stupid) sketch comedy show Pânico na TV for Rede-TV.

Her only “journalistic” credit, other than as the editor of her own blog, seems to be having authored a corporate communications blog for Skype Brasil.

The information-entertainment and news-(stealth) marketing barriers tend to be jaw-droppingly permeable here in Brazil.

And Brazilian trash TV is produced by nuclear physicists. Go figure.

Pânico na TV was the target of a (successful public-interest) lawsuit which forced it to air at a later hour because of excessive nudity. Compare

O pedido de identificação foi feito contra um leitor anônimo deixou vários comentários preconceituosos no blog de Rosana, entre os meses de junho e outubro deste ano. O usuário usava apelidos e nomes falsos. Os comentários menos ofensivos diziam: “creio que se tivessemos (sic) uma cova para jogar todos os judeus que patrocinam o tráfico de drogas melhoraria muito”. Outro afirmava: “depravada gosta de parada gay é? pudera, judia…tinha que ser depravada mesmo”. O leitor ameaçou Rosana dizendo que ela acabaria “com a boca cheia de formigas” por defender o público homossexual.

The request for identification targeted an anonymous reader who left various prejudiced comments on Rosana’s blog between June and October of this year. The user used nicknames and pseudonyms. The least offensive commentaries said: “I believe that if we had a grave into which we could throw all the Jews who sponsor the drug trade, things would get much better.” Another said: “You pervert, you liked the gay parade? You would, Jew. It must have been really depraved.” The reader threatens Rosana, saying she would wind up “with a mouthful of ants” [dead] for defending homosexuals.

Como gestora do blog, Rosana conseguiu o número de IP do computador do leitor, os horários e dias de acesso, juntou tudo e ingressou com ação judicial. “O que eu puder coibir pra melhorar minha atividade de blogueira, farei”, explica.

Using her blog’s content management system, Rosana managed to identify the IP address of the reader’s computer, and the time and date of access, then gathered the information together and filed suit. “Anything I can do to inhibit this, in order to improve my blogging, I will do,” she explains.

Anything she can do, that is, short of accepting responsibility for the decision not to remove the offensive content from her Web site, which she had the technical means and editorial discretion to do.

That is to say, she managed to identify the IP address of the ISP router he or she was connecting through.

If she had been able to uniquely identify his or her personal computer, we would not be having this conversation.

Depois que a Telemar entregar os dados com a identificação do leitor, a Procuradoria do Ministério Público Federal será oficiada para ingressar com ação contra o usuário de internet, por se tratar de crime na esfera federal. Na esfera privada Rosana promete ingressar com pedido de indenização por danos materiais, porque uma empresa desistiu de lhe entregar um projeto de blog corporativo depois de ler os comentários ofensivos.

After Telemar turns over the identifying information, the federal prosecutor will be asked to file suit against the Internet user, because this is a federal crime.

Among other things, it is a crime under the 1967 Press Law to publish messages expressing “racial or class prejudice.”

Expressions of “class prejudice” included stating or implying that the economic interests of employers and employes might naturally tend to diverge — the free and open market in human labor and the Fourth Amendment to the U.S. Constitution are a Communist plot! — and advocating letting employees spontaneously organize, without state interference, to bargain collectively over terms of employment.

In the private sphere, Rosana says she intends to sue for damages because a company gave up on awarding her a corporate blogging contract after reading the offensive comments.

In other words, her name is on the publication, and she expects credit for her work, but she cannot be held responsible for its contents, even though she has technical and editorial control of what does and does not appear on it.

Please. This stupid blog you are reading — why are you wasting your time reading blogs, anway, dear reader? — receives (literally) thousands of spam comments with links to Web sites selling medicines purporting to make your dick bigger and harder.

I do not endorse such products, so I simply do not publish the comments.

See also

Rosana mentioned back in February that UOL had invited her to blog on its Web portal. Why did the deal fall through? Will UOL testify on her behalf on this point?

Having installed a site ombudsman, UOL actually now seems to be making gestures in the direction of trying to at least give the impression that its content is something more closely resembling actual journalism than it has sometimes in the past.

In notorious cases that subjected its reputation to the risk of ridicule. Including by me. Well-deserved ridicule, I think, too. See

The Lorne Michaels-wannabe nuclear physicist now blogs on kit.net.

Discussão

Discussion

Em defesa de Rosana, o advogado Rony Vainzof, especialista em Direito Eletrônico e sócio do Opice Blum Advogados Associados, sustentou a tese de que a Constituição Federal garante a liberdade de expressão, mas veda o anonimato. “O seu direito constitucional termina onde começa o meu”, defende Vainzof. “Neste caso, houve crime contra honra e crime de ódio. Mesmo sem ter coragem para se identificar, o leitor vai responder pelos crimes que cometeu”, afirma.

In defense of Rosana, attorney Rony Vainzof, a specialist in Electronic Law [sic] and a partner at Opice Blum, maintains that the federal constitution guarantees freedom of expression but forbids anonymity. “Your constitutional rights end where mine begin,” he argues. “In this case, there was a crime against honor and a hate crime. Even though he [or she] does not have the courage to identify him[her]self, the reader will answer for the crimes he [or she] committed,” he states.

If Rosana is the plaintiff, and the target of vicious hate speech and death threats, why does her position need defending? Has someone made a counterclaim that we are not being told about?

On Opice Blum, see also

De acordo com o advogado, todo gestor de site que tem problemas com leitores que usam o anonimato devem procurar a Justiça para fazer garantir a regra constitucional. É, inclusive, consenso no Comitê Gestor de Internet, a obrigação de provedor de acesso ou de conteúdo garantir a identificação do usuário nos casos de comentários ofensivos, antes mesmo de ação judicial. Mas existem empresas que só cumprem a determinação se vier com ordem judicial, até mesmo para evitar mal estar com os clientes.

According to the attorney, every Web site manager who has problems with readers who use anonymity should seek legal redress to guarantee the rule of law.

My own policy, as a Web site manager, is simply to take all anonymous claims with a grain of salt, and try to convince others to take the same attitude. Anonymous sources sometimes tell whoppers without being held to account for having done so. And then Veja magazine publishes those whoppers.

Perhaps every Web site author should take editorial responsibility for stating clear rules governing contributions of content to the Web site, and enforcing them.

See

If the woman lost work as a Web site editor because of content she allowed someone else post to her Web site, maybe it was because they found she was an editor with a track record for failing to do the work of editing.

I know I would never hire an editor who takes the attitude that he or she is not responsible for the content he or she publishes.

What would I be paying him or her for, if not to do precisely that?

This is essentially the Veja magazine theory of buzz journalism. “I just publish it. I cannot be held responsible for its accuracy or lack thereof.”

See

I am just throwing that counterargument out because not a single legal eagle is cited here who advocates a [possible] defense for the [phantom] Internet Nazi here — on the civil aspect of the issue, at any rate.

There is even consensus in the CGI [the national internet management agency] that the access or content provider must provide ways of identifying users in the case of offensive commentaries, even prior to judicial action. But there are companies that only comply if it comes in the form of a court order, if only to avoid gripes from users.

Such as YouTube, I imagine they mean.

If Deep Throat (he turns out to have been a whistleblowing FBI agent) uses the Internet to commmunicate with Woodward and Bernstein, the Nixon White House can use the principle argued for here to discover his identity.

It can then have him transferred to a weather station in Alaska, where he can be quietly dumped on a glacier to freeze to death during the endless Arctic winter night.

The Watergate scandal never happens.

Dick Cheney is crowned emperor of the Western Hemisphere in 1982.

You no longer have a right to due process of law when it comes to your privacy.

Private parties now have the right to identify you outside of legal due process so they can SLAPP you silly.

Rush Limbaugh and Drudge dittoheads are no longer able to spread rumors without being named and shamed as the purveyors of gabbling nonsense. Then again, genuine whistleblowers swallow their whistles and resign themselves to lives of quiet desperation.

Mere anarchy is loosed upon the world.

On law enforcement, due process and the “habeas content” principal, see

Now, is there really consensus at the CGI on this point?

Flag for fact-checking.

Consultor Jurídico has proven itself capable recently of propagating viciously slanted nonsense about current cases and controversies. See, for example,

In an interview with SaferNet, for example, a candidate for the CGI board expresses what may be a divergent view of the issue:

Na visão de James Görgen, manter os princípios do anonimato e da liberdade de expressão na internet e, ao mesmo tempo, combater os crimes cibernéticos, é um ponto delicado mas fundamental. Ele planeja propor uma discussão mais aprofundada no Comitê sobre os limites entre relações interpessoais na rede e comunicação social. Acredita que mensagens pessoais publicadas em sites, por exemplo, possam ser analisadas pela ótica da liberdade de imprensa.

In the view of James Görgen [of the National Forum for the Democratization of Communications (FNDC)], maintaing the principles of anonymity and freedom of expression and, at the same time, combating cybercrime, is a delicate but fundamental issue. He plans to promote a deeper debate in the CGI about the boundaries between interpersonal relations on the Web and social communications. He believes that personal messages published on Web sites, for example, could be analyzed from the point of view of press freedom.

I noted the other day that the Estadão, for example, now actively edits its forums for compliance with posting rules. Which include a ban on “hate speech.” (“Hate speech” is against the law in Brazil, as is “apology for crime.”)

On the responsibilities of authors, editors and publishers, see also

I am still finding, to repeat the example, that 95% of the comments on this blog — nearly 5,000 in the queue at the moment — are still “Is your dick too small? We can help!” spam comments.

I have it made it fairly clear, I hope, that I do not endorse nostrums for making your dick bigger or harder longer — “make the best of your factory-standard equipment” is my motto, and I mean that sincerely — so I do not authorize those comments to appear on my site. They are off-topic, besides. This is not a blog about dick size, per se.

A substantial proportion of the remaining comments make baseless accusations about my mother and the Seventh Fleet, accusations that my mother vehemently denies — and has good evidence to rebut them with, too.

(And don’t think I did not cross-examine the old girl hard on her sexual history, either, just because we are related.

My very existence, after all, is living proof that she cannot possibly be a complete vestal virgin in this regard. I do not claim to have been immaculately conceived.

And I do, in fact, have many recognizably Braytonian features, such as an elongated slingblade of a nose and, sadly, as I get older, copious, wiry nose- and ear-hairs.)

Which is why I simply do not publish them.

Outra recomendação é a de que os provedores guardem os dados dos clientes por três anos, caso sejam surpreendidos com histórias como a da jornalista Rosana Hermman. Se não faz isso, o provedor responde solidariamente pelo dano, de acordo com o artigo 186 do Código Civil — “aquele que, por ação ou omissão voluntária, negligência ou imprudência, violar direito e causar dano a outrem, ainda que exclusivamente moral, comete ato ilícito.”

Another recommendation is that ISPs retain client data for three years, in the event they are suprised by stories like that of the journalist [sic] Rosana Hermman.

Recommendation by whom?

Failure to do so would subject the ISP to shared liability for the offense, under Article 186 of the Civil Code — “anyone who, by action or voluntary omission, negligence or imprudence, violates the rights of another, even if the right is exclusively moral, has committed an illict act.”

On Article 186, you can start with this article on DireitoNet on the Novo Código Civil (2002).

And this, on “Google’s responsibility for offensive content posted to Orkut.”

De acordo com o advogado, leitor ofendido em comentário de outro leitor também pode reclamar a identificação do último. Neste caso, ele aciona o provedor de conteúdo (o site), que responde solidariamente pela ofensa. É que o entendimento da Justiça tem sido de que site tem o poder de controlar seu conteúdo, se não o faz responde por isso. Mas cabe ao ofendido comprovar os danos sofridos. E, para evitar dor de cabeça, tem de fazer isso já na notificação para que o caso não pare nos tribunais. “A partir do momento que o provedor de conteúdo toma ciência de ato ilícito, precisa tomar providência”, assinala Vaizonf.

According to the lawyer, a reader offended by a comment left another reader can also call for the identification of the latter reader. In this case, he calls upon the content provider, who is jointly liable for the offense. Courts have understood that the site has the power to control its content, but have not made it responsible for this. But it is up to the offended party to prove the damages suffered. And, to avoid headaches, the offended party must do this in the notification, lest the case wind up in court. “The moment the ISP is made aware of the illicit act, it must take steps,” Vaizonf says.

But does Rosana not have the same responsiblity, by the same token?

She, after all, could have chosen not to publish the comment — which is, after all, not only offensive to her, but to Jewish people in general, and to faggots, and to those of us who sympathize with the rights of those groups, and others, not to be exterminated.

Shouldn’t we be suing her, on the same theory?

Whether or not to publish the comment was in her control after all. I myself would not hire a Web site editor whose previous work shows that she does not think that editing, and taking responsibility for, Web site content is her responsibility. What else would I be paying her for?

There are two aspects to this case: (1) the criminal — Brazil has criminal “hate-speech” laws — and (2) the civil.

The sensational aspect of the criminal conduct — “The Jew will die for defending faggots” — is used to leverage sympathy for this (tortured) civil liability theory, and its corollary — the draconian measure whereby ISPs would be obliged to identify all users to anyone who requests that information, even prior to and without due process of law.

(Aguinaldo Silva, screenwriter for Globo’s DUAS CARAS soap opera, recently announced he would take a hiatus from the program in Portugal.

Citing (unspecified) death threats.

The hiatus was then abruptly cancelled. Silva said he had forgotten to renew his passport, which he only discovered upon reaching the airport.

In the absence of his providing evidence of such threats — let’s see the e-mails — I tend to think not all of that is all that likely to be true.)

The Brazilian Congress last year rejected a law that would have all Internet users to register and provide truthful identification, on pain of prosecution. And would have made ISPs responsible for enforcing the rule.
John Palfrey, of the Berkman Center for the Intel-Inside Society, in an interview with Red Herring, described a “global trend” for assigning this sort of responsibility to ISPs.

A similar theory was used to argue that the entire YouTube.com domain should be blocked in Brazil because of failure to police the repeated re-posting of a video showing an MTV Brasil veejay, ahem, doing it with her boyfriend (a Merrill Lynch investment banker) on a public beach in Spain.

The court found that draconian measure unnecessary and in any event unconstitutional, but did subsequently order YouTube to take reasonable steps to prevent repeat posting of material subject to Brazilian court orders in such cases.

Still, given the failure of the legislative proposal to make ISPs jointly liable for, and duty-bound to disclose the author of, any anonymous content that other users claimed to be “offended by”, to actually prosper in the Brazilian Congress, this seemed more like wishful thinking — nam myoho renge kyo punditry, as I call it — than anything else.

A very large volume of gabbling nonsense was published on the issue. See, for example:

So I am guessing — just guessing — that this here is probably some sort of moral panic campaign. The Nazi Internet poses a terrible risk! Just look at the insults this poor lady suffered!

It may be understandable that no counterarguments are presented in this discussion in favor of the “Die, Jew pervert” conduct in question.

It is not something you really feel very much like defending, is it?

And after all, the author has not been identified.

Let me know if and when you do identify him or her.

But there is also no counterargument provided to the theory of civil liability proposed here.

Which runs contrary to public policy and jurisprudential trends on the question of the extent to which publishers are responsible for the content they publish.

A theory under which it is supposedly a good idea to let private parties compel ISPs to violate just anyone’s privacy without due process of law, on the mere allegation of being offended.

Veja magazine constantly proclaims itself to be “offended in its honor” when you point out that the quality of journalism practiced there leaves much to be desired. To put it mildly.

But I find myself offended by the gabbling nonsense Veja magazine publishes, in a non-legal sense.

It is an insult to my intelligence.

Therefore, I simply don’t buy it, or any of its sister publications. I recommend you follow my example. Toxic sludge is not good for you.

Veja claims it cannot be held responsible for the truth or falsity of anything it publishes.

And yet it markets its products to me as quality-controlled information services.

Please. I was not born yesterday. It abolished its fact-checking department, for one thing. Quack.
I don’t claim that I have suffered moral damage, in the legal sense, from believing in the nonexistent factoids Veja tends to run, of course, but it would be interesting to try to think of a case where one might.

I suppose if it printed baseless rumors that I regularly fuck, or BBQ, capyvaras — I don’t, I swear, and I defy you to find a credible witness, who can be corroborated, to such an absurd act on my part — I might find myself “offended in my honor.”

Especially if I were, say, the president of the Save the Capybaras Foundation.

If that principle were enshrined in law and jurisprudence, and generalized to privacy rights in general, Daniel Dantas might not be on trial for illegal wiretapping right now, it kind of seems to me. In a land without the right to electronic privacy, anything goes!
On the alleged consensus, or lack thereof, among members of the CGI board, you can read interviews with all the candidates for the “civil society” vacancies here:

They all speak to this issue.

Teza, who was elected, was even more emphatic on this point:

Não se pode, em nome da segurança, ameaçar a liberdade de expressão e a proteção da identidade na internet sem que haja orientações claras para isso.

Freedom of expression and the protection of identity on the Internet cannot be threatened without there being clear guidelines for this.

I tend to suspect the “consensus” cited by CJ is probably fictitious, or another case of John Palfrey “wishful thinking” or nam myoho renge kyo punditry.

The commissioners actually elected to the governing board in late November:

a) Content and access providers:

b) provedores de infra-estrutura de telecomunicações:

  • ALEXANDRE ANNENBERG NETTO (ABTA (pay TV) lobbyist)- Elected
    ERCIO ALBERTO ZILLI (ACEL (cell phone industry) lobbyist) – Alternate

c) IT and telecom hardware and software:

  • HENRIQUE FAULHABER (Valor Econômico columnist, ISM S/A board member, and long-time tech journalist, director of the Rio Association of IT Companies (SEPRORJ) — Elected
  • JOSÉ CARLOS LOURENÇO REGO (financial director of SEPRORJ (the former AEPROSI, Rio Association of Data-Processing Companies) — Alternate

Correct: it is a though a board member of the Business Software Association wrote a regular column for the Tech section of the Wall Street Journal. The institutional relationship is, at least, disclosed by VE at the foot of his columns.

Which is not exactly standard industry practice here in Brazil.

A joint Globo-Folha venture, VE is quite infodense and fairly non-nonsensical. I try to buy it several times a week, along with the Gazeta Mercantil.

d) Business user sector:

II – “Civil society”

  • MARIO LUIS TEZA – Titular
  • CARLOS ALBERTO AFONSO – Titular
  • GUSTAVO GINDRE MONTEIRO SOARES – Titular
  • MARCELO FERNANDES COSTA – Titular
  • EVERTON DOS SANTOS RODRIGUES . Suplente
  • JAMES GÖRGEN – Suplente
  • ANA MARIA DRUMMOND CHICARINO – Suplente
  • MARIA DO AMPARO ARAÚJO – Suplente

III – Science and technology community (academic)

  • NELSON SIMÕES DA SILVA (National Research and Education Network (RNP) — Elected
  • LISANDRO ZAMBENEDETTI GRANVILLE (Federal Univ. of Rio Grande do Sul — UFRGS) — Elected
  • FLÁVIO RECH WAGNER (UFRGS Embedded Systems Lab) — Elected
  • OMAR KAMINSKI – Alternate
  • TÚLIO LIMA VIANNA – Alternate

Which of those are Opice Blum clients, I wonder? (If any, of course.)

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