Offensive against Sleeping Giants Brazil may set a dangerous precedent

A versão original deste artigo, em Portugues, está disponível aqui.

This article was shared with us by APC member organisation Intervozes, which provided the English and Spanish translations. It was originally published in Portuguese in CartaCapital.

In May 2020, a Twitter profile called Sleeping Giants emerged as a new character of the Brazilian fantastic realism and struck a heavy blow against the disinformation industry. The newly created account started to publicly call for responsibility of advertising companies in the fight against the so called "fake news", pressuring them not to finance channels that propagate this type of content.

The counterattack did not take long to happen. Jornal da Cidade Online, an outlet that has been systematically questioned about the basis and veracity of the information they publish, also by the Congress’ CPMI of Fake News, went to court to demand violation of data protection of Sleeping Giants on Twitter. The pressure grew from October with the denial of authorization by the Court of Justice of the State of Rio Grande do Sul to the request of participation of entities specialized in the right to information and freedom of expression in the country, as well as its decision of demanding the digital platform to deliver the account administrators’ information before the lawsuit final decision.

The disinformation industry depends on the business model of digital platforms that manage the relationship between content publishers and advertisers through tools such as Google AdSense, which was used by the disinformation page. Thus, the most effective way to prevent such media outlets from spreading false news and causing enormous damage to democracy is to alert their advertisers about the disinformation spread by the organizations in which they advertise.

The way that the lawyer José Pinheiro Tolentino Filho's false news site chose to attack the Sleeping Giants in court, demanding that Twitter deliver the identification data of the author user of the page, aims to hit it in at least two ways. The first one would be through pressure and litigation against the profile administrator, mobilizing lawsuits for defamation, accusing them of pointing out that the page Jornal da Cidade Online spreads false news (which is actually a widely recognized fact, as they have already being convicted of moral damages against judges and investigation in the so-called CPI of Fake News).

The second way – we suppose it by the modus operandi of the political field to which the Jornal da Cidade Online belongs to – would be the use of this data to mobilize campaigns of injuries and threats against those who run the Sleeping Giants. This is, for example, what happened with their US version and it is what usually happens daily with the opponents of the “bolsonarismo” – it only takes reading the news to be aware of it.

Matt Rivitz, advertiser who created Sleeping Giants in the U.S. in November 2016, has been facing death threats since a conservative website revealed his identity. The threats were directed not only against him, but also against his 14-year-old son. The U.S. version of the giants succeeded in impacting, among others, the Breitbart News disinformation website, which had been edited by Steve Bannon, a former Trump government strategist.

The connections between the disinformation industry and the head of the Brazilian Government are also known. The importance of the Jornal da Cidade Online to the networks of “bolsonaristas” false news can be measured by the reaction that the action of Sleeping Giants caused in the close circle of the President Bolsonaro. After the decision of the Bank of Brazil to no longer advertise on the page, Carlos Bolsonaro, the President's son, and the Secretary of Communication at the time, Fábio Wajngarten, publicly demonstrated against the action and the bank was intervened to reverse the decision.

According to an article published in April 2020 by the information check agency "Aos Fatos", Jornal da Cidade Online belongs to a disinformation network that is maintained through advertisement financing and is directly linked to the “bolsonarista” page maintained by the torturer Alberto Brilhante Ustra's widow. Until the beginning of this year, both sites shared the same identification code in the Google AdSense system, along with other domains. This means, that the money raised by them through the "programmatic advertising" service offered by Google was distributed within this same group.

The history of the connection between the disinformation industry and the declared defenders of torture and political violence raises a warning that justifies the concern of human rights and civil freedom defenders about the possible breaking of data confidentiality of Sleeping Giants administrators. Once this information is revealed, its impact on the lives of those involved will be irreversible, and this is extremely dangerous in a country with high rates of violence and murder against communicators and human rights advocates like Brazil. In addition, the fight against disinformation can lose perhaps its current most powerful instrument for confronting the so-called fake news, for its capacity to strangle the economic viability of keeping large channels of false content dissemination.

While on the one hand Sleeping Giants uses a nickname as a strategy to protect the physical integrity and life of its administrators, on the other hand the Jornal da Cidade Online created fake columnists to attack their targets with slanders. In this case, however, it created fake people profiles using portraits of real people in order to deceive the public about the existence of those who sign the texts. The profiles attributed to journalists would attack the image of congressmen, Supreme Federal Court (STF) ministers, and judges using disinformation.

Anonymity and social networks

It is worth mentioning that the anonymity prohibition, provided for in the Constitution, should not be used as an argument against Sleeping Giants Brazil. It is well known that such prohibition seeks to prevent abuses in the exercise of freedom of thought manifestation.

Actually, it is even possible to question the classification of the Sleeping Giants profile as anonymous because, although the public cannot identify the author, the social network holds their data stored by law, which, if crossed with data from connection providers, can lead to the identification of the profile. In this sense, the Federal Supreme Court has embraced the understanding that the practice of anonymity can be observed in an absolute or relative way, with the latter being a third party capable of identifying it, reaching its identity.

On the Internet, the information stored by the provider that offers internet access and by those who offer online services can provide identification. For these providers no one is anonymous, as long as the legislation is complied with (in this case, the Brazilian Civil Rights Framework for the Internet and the General Data Protection Law - LGPD) which provides for the integrity of the electronic data under their custody, which contains information about the (electronic) identification of users.

In this sense, the Internet user who uses the Internet to perform certain actions and does so through relative anonymity should have his/her right to data secrecy and privacy minimized only if his/her acts violate the rights of others. Thus, the Justice should not force Twitter, at the request of the Jornal da Cidade Online, to deliver the user's data of the account – unless the illegality of the published content has been previously recognized.

The use of a nickname or anonymity has the potential to empower people, giving a voice to those who for some reason face difficulties in having space to express their views, thus allowing participation and engagement, offering a sense of security and protection, helping people to speak more openly, without fear and censorship for counteracting powerful interests, and protecting information and personal data, diminishing surveillance and violation of privacy.

Failure to preserve anonymity in this case exposes people to the risk of death and serious restrictions of freedom. Thus, even if it were understood that the prohibition of anonymity should be maintained since it is a constitutional right, life is the most important of rights, and there is no doubt that in a conflict between constitutional principles like this, life and freedom should in all cases be preserved.

As it can be noted, the Sleeping Giants page criticized certain content producers and requested their advertisers' positioning. In the opinion of Intervozes - Coletivo Brasil de Comunicação Social (Brazil Social Communication Collective), there is nothing illegal in this act that should lead to the need of identifying the user responsible for the profile. This was the reason that motivated the organization to file an Amicus Curiae's request in this case, which was denied.

Therefore, we warn that freedom of expression, to which the lawsuit is related, should not be taken as an authorization for disinformation outlets to attack the image of their opponents and manipulate information of public interest in order to take political and economic advantage. It should be used to ensure that we can gather truthful information, without any constraint, in the demanding of social responsibility from private and public agents. And we are sufficiently alert and wide awake to have no doubts about it.

Bruno Marinoni is a journalist, PhD in Sociology and a member of Intervozes.

Marina Pita has a degree in Social Communication, is a post-graduate student in Digital Rights and the executive coordinator of Intervozes.

Understanding the steps of the process

• On May 25, 2020, Jornal da Cidade Online filed a lawsuit against Twitter, aiming to force the platform to provide data from two profiles hosted on that social network, Sleeping Giants Brazil (@slpng_giants_pt) and Sleeping Giants Rio Grande do Sul (@slpng_giants_RS). The lawsuit also demanded the exclusion of those accounts or, alternatively, the exclusion of the posts that mention the Jornal da Cidade Online. The three requests were submitted in a matter of urgency in order to obtain a preliminary decision for the delivery of the data and exclusion of the profiles within 24 hours.

• On 05/27/2020, a decision was published granting partial emergency custody, in which it was determined to Twitter (i) to provide the information about the IPs, the logical gateway and other registration data of the users who created the two profiles of the Sleeping Giants and (ii) that the mentioned data be preserved by Twitter until the lawsuit's res judicata, under the Secrecy of Justice, restricting the use by the plaintiff of the action only for the instruction of a lawsuit or police investigation. The basis of the partial decision was (i) the prohibition of anonymity in the Constitution and (ii) the danger of irreparable damage by the delay, given that the Brazilian Civil Rights Framework for the Internet establishes a period of 6 months for providers to exclude access records and 1 year for administrators to exclude connection records. In relation to the requests for exclusion of profiles or posts, the granting of custody was denied, on the grounds of protection of freedom of expression, given that the information disclosed by the profiles of Sleeping Giants on the Online City Journal were true and even investigated by the so-called CPMI of Fake News, which is being processed in Congress.

• Immediately, Twitter preserved and stored all the data it had on the referred accounts, but filed an embargo of declaration against the preliminary court decision, arguing that the decision (i) is contradictory because the illegality of the act was dismissed since the post was not considered slanderous – which would make it impossible to grant partial emergency protection, given that the Brazilian Civil Rights Framework for the Internet provides for the occurrence of an illegal act as a requirement for guarding and delivering of registration records, under the terms of art. 22, and (ii) is unclear as to the extent of the breach of confidentiality, since Twitter operators do not collect "registration data" and do not have a "logical gateway".

• The embargoes of declaration were rejected, and a contestation was presented by Twitter. The bill of review filed by Twitter presented as argument: (i) the violation of article 22, sole paragraph, item I of the Brazilian Civil Rights Framework for the Internet, which provides for the need of "well-founded indications of illegality" in the user's conduct as an essential legal requirement, (ii) the absence of grounds to determine the supply of Twitter users’ data, since the Judge himself expressly recognized that there is no illegality in the content posted by users and (iii) Twitter operators do not even have the required data on their servers, and there is no rule in the Brazilian legal system that forces Internet application providers to collect, store or provide the "logical gateway" and "registration data" not collected from their users.

• The Reporting Judge received the appeal, but dismissed it in a monocratic decision, that is, the request was denied and considered null and void. Against this decision, Twitter filed an internal appeal. In the meantime, between the filing of the appeal and the trial, Nadini Jammi, co-founder of Check My Ads and Sleeping Giants, requested the intervention of a third party in the records of the Bill of Review. The request for intervention was not granted, and the appeal was dismissed, in an agreement published on 03/11/2020. Against the ruling, Twitter opposed embargos of declaration, still pending decision.

• At the beginning, simultaneously to the Court proceedings, the organizations IDIBEM - Instituto Beta para Internet e Democracia (Beta Institute for Internet and Democracy), Conectas Direitos Humanos (Conectas Human Rights) and Intervozes - Coletivo Brasil de Comunicação Social (Brazil Social Communication Collective) requested admission to the process as amicus curiae, and Nandini Jammi as simple assistant. The requests were denied by the Second Instance judge, who analyzed the preliminary injunction, but it still haven't been analyzed by the First Instance Judge, who analyzes the merit. The case file has been concluded since 11/23/2020, i.e. it waits for the judge's decision.