Articles
My Privacy is Bigger than Yours: The Cicarelli vs. YouTube case
Paula Martini · Rio de Janeiro (Brazil) · 18/10/2007 19:21 · 32 votes
January, 9, 2007 was a curious day for the Internet. At the same time that "net neutrality" was reintroduced in the US Congress with the Internet Freedom Preservation Act, in Brazil, the São Paulo State Court of Appeals (TJ-SP) was blocking YouTube, issuing an injunction requiring all the backbones in the country to block the video website. During those days, more than 5 million people (25% of Brazilians connected to the Internet) had their access to YouTube shut down. Naturally, they were not really happy with famous model Daniela Cicarelli, a former wife of Brazil's soccer star Ronaldo, the plaintiff in the lawsuit against YouTube.
A few months before, the Brazilian model and MTV host was surprised by a paparazzo in a romantic encounter with her boyfriend, Renato Malzoni Jr., on a beach in Cadiz, Spain. The video shows the couple, in a public space, performing some really "caliente" scenes, which were quickly disseminate on YouTube. The result: lawsuits filed not only against YouTube, but also against broadcast company Organizacoes Globo and the Internet service provider known as IG (Internet Group). The claim: indemnification for the "moral damages" for disseminating the video, as well as a request for the court to take all measures to prevent the dissemination of the video.
This would be just another torts case for the violation of privacy rights, but the court decided to take it seriously. The Court of Appeals injunction ordered all the backbones to filter any content coming from YouTube. Unlike other similar cases such as in Turkey, in which highly controversial political issues were involved regarding YouTube’s blocking, the Brazilian decision was clearly disproportionate. The issue was one person's privacy rights (mitigated by the fact that it was a public space, and also because a celebrity was involved) against the rights of all Internet users in Brazil.
Naturally, the issue quickly spread over the net and other media. All eyes in Brazil and worldwide turned to Cicarelli, causing the video to spread not only on YouTube, but also through other video sites, blogs and porn sites.
Proportionality: two different rights on the scale
Sometimes privacy/image rights often conflict with freedom of speech and information. In the last decades, the law in Brazil drew a limit between unlawful curiosity (that harms personal intimacy) and a certain permissive voyeurism that characterises the cult of celebrities in the country. In the Cicarelli case, those limits were once again shaken. Is it a balanced decision to block the access of millions to a website in order to prevent access to one single video?
Professor Carlos Affonso Souza, a professor of civil law at FGV Law School, says the decision was wrong: "By blocking the entire site because of one video, the courts undermined the collective interest in favor of a personal interest".
The reaction to the lawsuit decision created havoc among Brazilian Internet users. The case became famous even internationally, and numerous media and blogs echoed the case. Comparisons between Brazil and other countries that actively filter content became frequent. (On content filtering, please see the document developed by the Berkman Center for Internet & Society at Harvard University, that shows very interesting data on content blocking in Saudi Arabia and China. In Saudi Arabia, for example, thousands of websites have been blocked, including websites containing information on health, education, women, humour, entertainment, etc.)
A consensus quickly emerged: the case could even get some sort of remedy from the courts, but Internet content filtering was certainly the worst option.
The discussion reached even more technical grounds. Criticism to the court decision claimed that it was ineffective, unlawful and a bad precedent for net neutrality. Ineffectiveness was obvious. The video was quickly spread to many other websites beyond YouTube. Also, a simple proxy server could avoid the blocking imposed by the courts. The case also raised important net neutrality discussions. If filtering was clearly absurd in the Cicarelli case, could the courts then use it as a remedy in more "serious" cases?
Reactions, reactions, reactions
The injunction was revoked five days after it had been issued, thanks to the uproar all over the country. One curious reaction was a protest organised by young Internet users in front of MTV, where Cicarelli was working as a TV host. The youngsters were demanding that MTV should fire Cicarelli immediately, because she took their much loved YouTube away. The response from MTV was interesting. The music television channel quickly sided with Cicarelli against YouTube, accusing the young protesters of being "authoritarian", and stating that they were sharing the same "discriminatory" ideals as the court decision they were criticising. No wonder MTV in Brazil and elsewhere is facing a loss of its audience, as they dash to sites like YouTube.
After the storm, one important issue remains. The reason for all the turmoil is that there are absolutely no legal standards in Brazil allowing judges to deal with similar issues. In other words, unlike the United States and many other countries that have regulated the liability of Internet Service Providers (ISPs) and Online Service Providers (OSPs, such as YouTube), the Brazilian law remains silent about it. The practical consequence is that basically the judges are free to decide the cases as they deem fit, justifying the decisions as if they were based on "general principles of law" and other legalese.
For the near future, the case made it clear that Brazil still has to do its homework to create legal safeguard for ISPs and OSPs, establishing the situations in which they should be considered liable and those in which they should not. Without such rules, creating a collaborative, web 2.0-style, website in Brazil, or any other website in which the content is generated by the users, is a legal adventure in the country, because their creators are literally navigating uncharted legal waters – but that has not prevented a myriad of entrepreneurs from creating collaborative sites in the country. In the meantime, sit down, relax, and enjoy Daniela Cicarelli and her boyfriend in the hot waters of Cadiz in Spain, at any computer plugged to the Internet near to you.
Epilogue
In late June the Court ruled that Daniela Cicarelli and Renato Malzoni Jr. would have to pay R$ 10,000 (approximately US$ 5,000) to YouTube, Globo and IG, as attorney fees, since the lost the lawsuit.
This article contains information from the papers Neutralidade da Rede, Filtragem de Conteúdo and Interesse Público ("Web Neutrality, Content Filtering and Public Interest"), by Carlos Affonso Pereira de Souza, Pedro de Paranaguá Moniz and Sérgio Branco Vieira Junior, CC BY-NC-SA 2.5, and Understanding the Cicarelli vs. YouTube case, parts I and II, by Pedro de Paranaguá Moniz, CC BY-SA 2.0.
A few months before, the Brazilian model and MTV host was surprised by a paparazzo in a romantic encounter with her boyfriend, Renato Malzoni Jr., on a beach in Cadiz, Spain. The video shows the couple, in a public space, performing some really "caliente" scenes, which were quickly disseminate on YouTube. The result: lawsuits filed not only against YouTube, but also against broadcast company Organizacoes Globo and the Internet service provider known as IG (Internet Group). The claim: indemnification for the "moral damages" for disseminating the video, as well as a request for the court to take all measures to prevent the dissemination of the video.
This would be just another torts case for the violation of privacy rights, but the court decided to take it seriously. The Court of Appeals injunction ordered all the backbones to filter any content coming from YouTube. Unlike other similar cases such as in Turkey, in which highly controversial political issues were involved regarding YouTube’s blocking, the Brazilian decision was clearly disproportionate. The issue was one person's privacy rights (mitigated by the fact that it was a public space, and also because a celebrity was involved) against the rights of all Internet users in Brazil.
Naturally, the issue quickly spread over the net and other media. All eyes in Brazil and worldwide turned to Cicarelli, causing the video to spread not only on YouTube, but also through other video sites, blogs and porn sites.
Proportionality: two different rights on the scale
Sometimes privacy/image rights often conflict with freedom of speech and information. In the last decades, the law in Brazil drew a limit between unlawful curiosity (that harms personal intimacy) and a certain permissive voyeurism that characterises the cult of celebrities in the country. In the Cicarelli case, those limits were once again shaken. Is it a balanced decision to block the access of millions to a website in order to prevent access to one single video?
Professor Carlos Affonso Souza, a professor of civil law at FGV Law School, says the decision was wrong: "By blocking the entire site because of one video, the courts undermined the collective interest in favor of a personal interest".
The reaction to the lawsuit decision created havoc among Brazilian Internet users. The case became famous even internationally, and numerous media and blogs echoed the case. Comparisons between Brazil and other countries that actively filter content became frequent. (On content filtering, please see the document developed by the Berkman Center for Internet & Society at Harvard University, that shows very interesting data on content blocking in Saudi Arabia and China. In Saudi Arabia, for example, thousands of websites have been blocked, including websites containing information on health, education, women, humour, entertainment, etc.)
A consensus quickly emerged: the case could even get some sort of remedy from the courts, but Internet content filtering was certainly the worst option.
The discussion reached even more technical grounds. Criticism to the court decision claimed that it was ineffective, unlawful and a bad precedent for net neutrality. Ineffectiveness was obvious. The video was quickly spread to many other websites beyond YouTube. Also, a simple proxy server could avoid the blocking imposed by the courts. The case also raised important net neutrality discussions. If filtering was clearly absurd in the Cicarelli case, could the courts then use it as a remedy in more "serious" cases?
Reactions, reactions, reactions
The injunction was revoked five days after it had been issued, thanks to the uproar all over the country. One curious reaction was a protest organised by young Internet users in front of MTV, where Cicarelli was working as a TV host. The youngsters were demanding that MTV should fire Cicarelli immediately, because she took their much loved YouTube away. The response from MTV was interesting. The music television channel quickly sided with Cicarelli against YouTube, accusing the young protesters of being "authoritarian", and stating that they were sharing the same "discriminatory" ideals as the court decision they were criticising. No wonder MTV in Brazil and elsewhere is facing a loss of its audience, as they dash to sites like YouTube.
After the storm, one important issue remains. The reason for all the turmoil is that there are absolutely no legal standards in Brazil allowing judges to deal with similar issues. In other words, unlike the United States and many other countries that have regulated the liability of Internet Service Providers (ISPs) and Online Service Providers (OSPs, such as YouTube), the Brazilian law remains silent about it. The practical consequence is that basically the judges are free to decide the cases as they deem fit, justifying the decisions as if they were based on "general principles of law" and other legalese.
For the near future, the case made it clear that Brazil still has to do its homework to create legal safeguard for ISPs and OSPs, establishing the situations in which they should be considered liable and those in which they should not. Without such rules, creating a collaborative, web 2.0-style, website in Brazil, or any other website in which the content is generated by the users, is a legal adventure in the country, because their creators are literally navigating uncharted legal waters – but that has not prevented a myriad of entrepreneurs from creating collaborative sites in the country. In the meantime, sit down, relax, and enjoy Daniela Cicarelli and her boyfriend in the hot waters of Cadiz in Spain, at any computer plugged to the Internet near to you.
Epilogue
In late June the Court ruled that Daniela Cicarelli and Renato Malzoni Jr. would have to pay R$ 10,000 (approximately US$ 5,000) to YouTube, Globo and IG, as attorney fees, since the lost the lawsuit.
This article contains information from the papers Neutralidade da Rede, Filtragem de Conteúdo and Interesse Público ("Web Neutrality, Content Filtering and Public Interest"), by Carlos Affonso Pereira de Souza, Pedro de Paranaguá Moniz and Sérgio Branco Vieira Junior, CC BY-NC-SA 2.5, and Understanding the Cicarelli vs. YouTube case, parts I and II, by Pedro de Paranaguá Moniz, CC BY-SA 2.0.
tags: Rio de Janeiro Brazil policy-law filtering web-neutrality cicarelli youtube web-20 privacy private daniela-cicarelli local-contexts-global-commons
extracted from:Creative Commons
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