Isaura Silva, Douglas Leite e Fernanda Cohen
Sarahah. The new social network Sarahah has been drawing attention from the media and users and leading the rankings for most downloaded apps in several countries. With the premise of granting people the opportunity to be more honest and forthright with one another (“get honest feedback from your coworkers and friends”), the app allows for the sending of anonymous messages to other users, eliminating risks of creating hostility or resentment with the sender. The message cannot be answered by the recipient, simply “liked”, however there is an indication in the app’s website that this tool is being revisited. According to the creator of the app, Zain al-Abidin Tawfiq, the original idea was to grant people the chance to provide constructive criticism within the professional environment without the fear of retaliation by their bosses. 1Legal implications and rights in question.
In Brazil, the app’s availability raised discussions regarding privacy issues, the forbiddance of anonymity and application service providers’ liability for civil damages caused by third parties. Such matters regard rights and duties prescribed in Federal Law #12.965/2014, the Brazilian Internet Bill of Rights, and the Constitution. Also, with Sarahah’s sudden popularity, several voices accused the app of being a fertile ground for the propagation of cyberbullying and hate messages. In fact, this is not the first time these discussions emerge in Brazil. A couple of years ago, Secret, an app containing a similar premise, had already been debated both in the media and at the courts. Therefore, it is only natural that the solutions provided by the Judiciary in the Secret case be of assistance in solving the issues and concerns raised by Sarahah. The Brazilian experience with the Secret app. The popularity and controversysurrounding the “anonymous” feedback tool inevitably harks back to the issues examined regarding the Secret app, available in Brazil between 2014 and 2015 with the goal of allowing users to post and comment on personal secrets without being seemingly identified. In 2015, the Espirito Santo State Prosecutor’s Office filed a class action with the intent of ceasing the operations of the Secret app in Brazil under claims of violation to the constitutional disallowance of anonymity and alleged stimulus of offensive behavior between users. At the time, the 5th Civil Court of Vitoria granted the preliminary request inaudita altera pars to determine the removal of the app from the virtual stores at the argument that: “the utilization of the apps disrespects the final part of article 5, IV of the Constitution (disallowance of anonymity), and prevents, or makes extremely difficult, the possibility of assessing liability for compensatory damages of a material or moral nature due to the violation of people’s rights to privacy, honor and image (article 5, X of the Constitution.”2 Merely apparent anonymity.
In that occasion, Secret Inc. responded to these claims and clarified that even though the app allowed a certain degree of anonymity, in an online environment, users’ steps can always be traced. Both in the case of Secret and Sarahah, an attentive read of the terms and conditions is enough to apprehend that the anonymity is merely apparent and does not prevent users from being identified, within the terms of the Internet Bill of Rights3, and being held responsible in case damages occur. Anonymity within the Sarahah app, just like in Secret’s case, is not – and has never been – absolute, as it does not extend to competent authorities and does not avoid the identification of users that post unlawful content. In fact, the anonymity said to be existent within the Sarahah app is equally possible in other sites and apps, such as social networks Facebook and Twitter, e-mail providers such as Gmail or in the comment section of news sites like Globo.com. In these services or sites, any user can sign in with a fake profile, without providing much personal data, being the IP address is the tool for the identification of perpetrators of posts or messages with content that may cause damages to other users. Leading case by the State Court of Espirito Santo. In a remarkable decision, the 3rd Civil Law Chamber of the State Court of Espirito Santo ruled in favor of the defendant and reversed the preliminary injunction granted by the trial court judge within the class action to bar the Secret app. In reporting Appellate Judge Albanez’s own words, what motivated his ruling for keeping the app running was the fact that it is not too different from other tools available in the internet when it comes to the harms that could be propagated from its usage: “I believe this app is not essentially different to many other tools available in the web in which it would be possible to use them as an instrument to cause harm under a veil of anonymity. It is not too uncommon that these sites or apps, such as Facebook or Twitter, by people that use fake profiles to use these tools in an improper manner.” 4Application service providers and liability for civil damages in the Brazilian Internet Bill of Rights.
According to article 19 of the Brazilian Internet Bill of Rights5, application services providers, such as Sarahah, are not liable for civil damages arising from content posted by its users, except if they do not comply with a specific court order to make unlawful content unavailable6. The law does not provide exceptions regarding the need for a judicial order that compels the provider to takedown the unlawful content. Moreover, article 19 calls for the specific and clear designation of the location of the unlawful content7. On the other hand, users responsible for posting inappropriate content may be identified through the IP address, which allows for the pursuit of the civil damages they might inflict in a digital environment8. For those who herald pessimistic forecasts in the sense that apparent anonymity in the digital world encourages users to adopt damaging attitudes, it is imperative to note that, in the legislator’s own words, the regulation established by the Brazilian Internet Bill of Rights intends to “ensure freedom of expression and to prevent censorship”. The application service provider’s duty to store entry logs. Finally, it is noteworthy that article 15 of the Brazilian Internet Bill of Rights9 bonds application service providers to store their users’ entry logs for a period of 6 months. Such duty ensures that the identification of users that inflict civil damages upon others may be submitted by application service providers to the competent authorities when legally required. Conclusions. Sarahah
is not the first app that allows users to send apparently anonymous messages to each other or even the first tool to be denounced by those who are worried with the spreading of hate over the internet. Although this may be a valid concern, it seems to be misdirected. There seems to be a legitimate public interest in using apps like Sarahah and banning their online availability may undermine the recommended freedom of internet. Due consideration must be given to the fact that the apparent anonymity warranted by these apps does not imply that users who posts unlawful content may not be identified. As seen before, the Brazilian legal system is already equipped with the necessary tools to identify unlawful behaviour and allow for the due reparations. It must be pointed out that the definition of privacy has undergone radical changes over the last years, being presently reinterpreted in light of constitutional values. Indeed, the digital world has enhanced pre-existing legal issues which must be revisited in the context of a current reality and prevailing social concepts. In this sense, the issues surrounding the forbiddance of anonymity also deserves to be revisited in a way that is suitable considering the needs of a widely connected contemporary society, so as to avoid that new technologies and applications be halted under false pretences of protection. The structural perspective of the forbiddance of anonymity needs to serve the true function of this institute which is to avoid that civil damages go unrepaired, a reflection of the modern views on civil damages. The discussion that warrants further study is not whether these apps should be available, since they do not generate unlawful content, do not offend the rights of third-parties and do not provide the users with absolute anonymity in a sense that would inhibit identification. Rather, what raises real issues are the reasons why many users take advantage of the apps to cause harm to others, and how is it possible to avoid misuse in this sense. Considering this, the apps must not be held responsible for violent and harmful use of the internet. Users, on the other hand, shall be held liable for their own behaviour. In this sense, Sarahah, meaning “openness” and “honesty” in Arab, may provide a valid contribution. 1 KIRCHER, Madison Malone. Teens Explain Their Obsession With Sarahah, Summer’s Hottest Anonymous-Gossip App. NYMAG.com. Available at:<http://nymag.com/selectall/2017/07/what-is-sarahah-app.html>. Access on Aug. 1st, 2017. 2 5th Civil Court of Vitoria. Lawsuit # 0028553-98.2014.8.08.0024. Decision issued on Aug. 19, 2014. 3 Terms and conditions for Sarahah accessed on Jul. 37, 2017: “We will never disclose the this (sic) information unless there is a law requirement or with good intention if we feel that this procedure is required or wanted to meet legal requirements” (https://www.sarahah.com/Home/Privacy). Terms and conditions for Secret, accessed on Oct. 24, 2014: “Content that may be considered unlawful will be denounced to the proper authorities, in which case your identity may be revealed to the proper authorities in order to protect rights, property and the security of Secret and its users.” (https://www.secret.ly/privacy.com).4 State Court of Espirito Santo. 3rd Civil Law Chamber. Interlocutory Appeal #0035186-28.2014.8.08.0024. Portion of vote by Reporting Appellate Judge Robson Luiz Albanez. Trial session held on Apr. 7th, 2015. 5 Article 19 of Federal Law #12.965/2014: “In order to ensure freedom of expression and to prevent censorship, the provider of Internet applications can only be liable for civil damages arising from content generated by third parties if it does not act, after specific court order, timely and within the framework and technical limits of its services, to make the infringing content unavailable, except for contrary established statutory provisions”. 6 This rule has been discussed by the brazilian courts which reaffirm: “for the takedown of infringing content by internet service providers and content providers, a judicial notice with specific and clear identification of the URL – Universal Resource Locator - is necessary.” (Superior Court of Justice. Appeal #1.568.935-RJ. Hon. Justice Ricardo Villas Bôas Cueva. Trial date: 05/04/2016) 7 Article 19, §1st of Federal Law #12.965/2014: “The aforementioned court order, must clearly and specifically, identify the infringing content, enabling its unambiguous location, subject to be considered void otherwise”. 8 In respects to the application service provider’s liability: Superior Court of Justice. Appeal #1.582.981-RJ. Hon. Justice Marco Aurélio Bellizze. Trial date: 10/05/2016; Superior Court of Justice. Appeal # 1.568.935-RJ. Hon. Justice Ricardo Villas Bôas Cueva. Trial date: 05/04/2016; STJ. Superior Court of Justice. Appeal # 712.456-RJ. Hon. Justice João Otávio de Noronha. Trial date: 17/03/2016. 9 Article 15 of Federal Law #12.965/2014: “Internet application providers established as legal person exercising this activity in an organized manner, professionally and for economic purposes, must maintain their access logs of Internet applications in confidentiality, in a controlled and safe location for six months, under the terms of this regulation.”