Enrique Medina
Dear Peter,
We would like to thank you for comments on our post.
In fact, we believe that we share a common aim, protecting our customer’s fundamental rights and avoid blocking of Internet services, but disagree on the appropriate way to achieve that.
As we said in our post already, a decision to block a whole Internet service for all users is obviously not a good decision for anyone, including telecom companies.
Blocking of WhatsApp or any other legal Internet-based service does certainly have a toll on telecom operators: from reputational hits and unsatisfied customers to lost revenues and additional operational costs. That is precisely the reason why we felt the need to write the post: we believe that this blocking of WhatsApp in Brazil is a serious issue. So far we seem to agree.
Where we have different views is how we can avoid that something similar happens again, which is what we actually care about.
Our view here is clear and firm and based on our business principles: we will defend our customer’s fundamental rights, but we will do so in compliance with the processes and laws of the countries where we operate. We can and will not – as you seem to suggest – just ignore judicial orders of independent judges in democratic societies.
On the contrary we believe that it is exactly such non-compliance from the side of WhatsApp that is the root cause of the problem. We believe that – like any responsible citizens – when we disagree with judicial orders or laws, we need to take the legal appeal and redress mechanisms that democratic systems grant. To illustrate our view, let us share some background on the developments which led to the blocking of WhatsApp last week:
Already last February 2015, in a completely separate criminal case, a Brazilian court of the state of Piauí mandated the blocking of WhatsApp on similar grounds (non-compliance of the company with previous judicial orders to give access to information). It has been Brazilian communication companies, including Telefonica’s VIVO, that appealed that decision and asked for the suspension of the court order, so finally the blocking did not take place. We did not ignore the judicial order, but took the appropriate legal appeal measures. Also in the case last week, a Brazilian telecom operator lead a legal appeal, but this time it was unfortunately not successful. So the order by the court to block WhatsApp became effective and operators needed to follow it even if we disagreed on the substance. However, as you also recognise, also on that occasion the Brazilian legal system has proven to be sound and with sufficient legal redress mechanisms: the blocking was suspended by a higher Court just 13 hours after its implementation.
What can we learn from these cases?
We believe deeply in defending fundamental and Human rights of our customers and have shown that in numerous occasions. By way of example, as you might remember it was Telefonica which challenged in Germany the data retention laws based on Human rights concerns and achieved that after a long legal struggle through various appeals it was finally declared invalid by the German Constitutional Court. This is a good instance that exemplifies our believe that it is possible to protect and stand up for Human rights and nevertheless play by the rules. There can be no doubt that following court decisions is tantamount for the proper functioning of democratic societies and all citizens and companies are obliged to do so.
What would be the outcome if companies could “pick-and-choose” and decide which court decisions they want to follow and which ones not?
It would mean to give instead of independent judges and independent appeal mechanisms the power to decide on fundamental rights to private companies. This is what some Internet companies seem to prefer and actually do, but it is not what Telefonica believes in. It is obviously no solution, as it would give decision powers to non-independent bodies without any legitimacy, and without any proper appeal and redress mechanism. We hope this is not a scenario that Access Now nor anyone else that supports human rights online would want to see in the future as it would profoundly undermine the core values and basis of our societies and democracies.
As said, we agree on the objective to protect our customers fundamental human rights. We also have sympathy for the argument that blocking WhatsApp has a strong impact on all stakeholder and thus should be a last resource solution. We only do not believe that following court orders, even misguided ones, can be left to the discretion and decision of private companies and that instead the legal appeal and redress mechanisms should be used (as happened also in Brazil).
We are very glad you mention our commitments to the Telecommunications Industry Dialogue, a group of leading companies where we are a founding member. Not only our statement does not waive any of our commitments, but it is fully complying with ID’s guiding principles. In fact, the paragraph introducing the ten guiding principles clearly states: “Telecommunications companies should, to the extent that does not place them in violation of domestic laws and regulations, …”. And this is precisely what we are arguing for: upholding of laws and regulations.
Referring to universally applicable human rights, we get to the same conclusion, as the Article 29.2 of the Universal Declaration of Human Rights states: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”
We are convinced that it would be better for all, companies and Brazilian citizens, if WhatsApp and Facebook would stand up for human rights like Telefonica and many other companies do every day: by standing firm to their believes, argue against excesses of administrations and use all existing legal mechanism which exist in democratic societies to fight for human rights.
We hope that we will be able to avoid any similar situation in the future as we understand and sympathise with the anger of our customers.
But we need to be clear that to do so we will need to go to the root of the problem and solve the issue there: It will need Internet companies like WhatsApp to understand that it is their failure to follow court orders and behave in a responsible way in major markets like Brazil, in the same way as they do it in the markets where they have their headquarters.
Moral grandstanding and Sunday speeches will not help to prevent that we will see more of such unfortunate situations happening.
It will instead need some real responsibility and respect for local laws, institutions and societies by global Internet service companies: with great power comes great responsibility.
Best regards.
