Originally written by Pedro Paranaguá, in Brazilian Portuguese.

After having read part I, about the Cicarelli versus YouTube case, we now proceed to part II: far beyond Cicarelli and YouTube.

As mentioned and criticized by some colleagues, this case is everywhere around: newspapers, magazines, radios, TVs, blogs in Brazil and in the whole world. Many just cannot hear about this case anymore – we needed to put a stop to that. But no, this is not our opinion.

What actually matters for us here is not if it is about Cicarelli, ex-wife of Brazil´s Ronaldo, the Phenomena, or any other famous person, or if it is about YouTube or any other website: what actually matters for us is the macro-analysis, and how that all may affect the Internet, freedom of speech, democratic access to information and absence of authoritarianism on the web. To sum up, the web neutrality.

So, let’s forget if it was Cicarelli the plaintiff. Let’s forget if it was YouTube the blocked website. Let’s now think about the possible consequences for the Internet neutrality.

In some moments, in order to elucidate the issue more clearly, mostly for lay persons, we will use examples that involve the concrete case: but, again, let’s not adhere uniquely to the Cicarelli case; let’s think wider, about the web neutrality.

Why blocking or filtering, are generally not welcome, be that about a whole website, be that about an specific content, like a video, within this website?

And the answer is:

independently if it aims at blocking a whole website or a certain content within that website, filtering shall always be the last solution. The general rule universally accepted is that content filtering is always the worst of the ways.

There are many papers on this issue, and it is important to mention the document developed by the Berkman Center for Internet & Society, of Harvard University.

The mentioned paper shows interesting data about 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. Websites like the Rolling Stone music magazine, FoxSearchLight film searching, as well as a website about the museum of the Holocaust survivor, in Amsterdam, the Anne Frank House, have also been completely blocked.

The conclusion is that filtering is (practically) always inappropriate. There are at least three reasons for this:

1. Filtering is inefficient. The use of very simple and Internet-available technological mechanisms make possible the defrauding of the filters utilised. If the blocked or filtered content is a video, for example, and if the filter is put on the video’s given name, then, for the filter to be defrauded, one shall just change the video’s name so that the filter will not recognize it. When the keyword is removed the filter does not work anymore. In case the filter acts through the URL, i.e., the video’s address on the Internet, one may just create another URL for the same video and the blocking mechanisms will not recognize it, and thus the video will be available. If filtering occurs in the whole website, one may just access that website through a proxy server [Portuguese version], deceiving the filter. Beyond these possibilities, the content, in this case a video, may be put available on-line in another website. Therefore, there is no use in filtering YouTube, because surely that content will be available in other websites – as a matter of fact, it already is. Another way of making the filtering ineffective is to make the content available with the aid of file-sharing mechanisms: peer-to-peer (P2P) software like eMule, BitTorrent, LimeWire, SoulSeek etc..

Therefore, once on the web, a content will be hardly filtered.

2. Filtering always extrapolate the specific limits for what it was implemented. When a type of content is blocked, certainly other legitimate ones will be blocked too. So, filtering is not punctual, it always ends blocking other contents. It is the same as using a dragnet for fishing prawns and having a turtle coming together with it.

3. Filtering affects the called web neutrality. Imagine if the telecom companies blocked certain types of conversation? Society would be completely different. It is not a coincidence that filtering occurs in authoritarian countries, characterized by democracy pruning, like China, Saudi Arabia and, more recently, Thailand. The web can not be controlled so that it can become authoritarian. Democratic access to information must prevail. Only in extreme cases of great offensive potential, like paedophilia for example, measures like that can be taken. It is about the defense of children’s physical and psychological integrity: this is fatefully a consensus in society. Nevertheless, one or two people’s interests can not be put ahead of the interests of the whole collective, of millions of people, of the access to information, communications net integrity and technological neutrality. It is curious to note that on the same 9th of January, day in which the Sao Paulo State Court of Appeals (TJ-SP) informed that the tribunal did not claim the whole YouTube blocking, US congressmen brought back on the agenda the discussion on web neutrality, though the Internet Freedom Preservation Act.

We can go further on the discussion. Relating to illegal acts on the Internet, the ones that are not crimes but civil infringements, i.e., much more connected to private interests than to public interests, the fundamental principles of democratic access to information must prevail. And protecting those principles must be priority to the Judiciary Power, making clear that restrictions shall only occur as specific exceptions.

So, and as explicitly recognized [Portuguese version] by the Judge of the 4th Chamber of Private Law of The Sao Paulo Court of Appeals (TJ-SP), Ênio Santarelli Zuliani, in the specific case Cicarelli vs. YouTube,

there is a need for a new legislation on the issue. On the responsibility of the Internet Service Providers.

Brazil needs a new legislation that safeguard Internet Service Providers (ISPs) from the responsibility over the content that circulates through them.

The responsibility of the ISPs shall only arise in circumstances very specific, clear and prescribed by law, otherwise an improper juridical insecurity can be generated, being harmful for web innovation in the end.

Internet service and content providers are the favourite targets on judicial lawsuitings, because of its easy identification by having physical addresses and carrying out commercial activities, i.e., generally having revenues. Nevertheless, that strategy is wrong. More and more we see countries adopting specific legislations in order to safeguard ISPs from this practice of always being charged in first place. That protection is fundamental. To bring a balance related to providers’ responsibility is fundamental to promote technological innovation.

In this way,

the issue that is in Brazilian Courts can represent an obstacle for entrepreneurism on the Internet, and also bring an international extremely bad fame related to uncertain judicial decisions.

An entrepreneur, when calculating the risks of investing in a new web tool, mostly if it is about a platform through which it is possible that the Internet user himself build or at least upload contents – the called web 2.0 —, will think twice before moving forward. After all, in Brazil, who is the responsible for content? Our courts have been deciding in multiple ways. There’s uncertainty. There’s no specific law on the subject.

So, as can be seen, the concrete case Cicarelli versus YouTube is extremely important for the discussion we launched here, not because of its specificities, but because it directly affects the web neutrality and future issues in Brazil.

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