STJ decides which email provider hosted abroad should provide data required by the Brazilian courts

The Third Panel of the Superior Court of Justice (STJ) decided, unanimously, following the vote of Minister Rapporteur Nancy Andrighi, that Brazilian law and the jurisdiction of the national authority will be applied when operations by internet providers take place in Brazil, even though only one of the devices is in national territory and the activities are carried out by a company abroad.

The controversy originated in the request to supply the access records of the email address holder, which would have been used for the transmission of offenses and threats, which was granted in anticipation of guardianship. If the court order was not complied with, the provisional execution of the astreintes started, and the challenge was rejected and the interlocutory appeal was dismissed. Consequently, the argument that it was impossible to comply with the obligation to import in violation of US law was removed.

In the special appeal, the technology company alleged violation of art. 11 of the Marco Civil da Internet (requirement that at least one of the operations took place in national territory) and article 13 of the LINDB (legislation applicable to the production of evidence according to the location of the facts), in addition to the incompetence of the Brazilian justice to stipulate the obligation of supplying the requested data. In view of this, the appeal was delimited “in determining the competence of the Brazilian Judiciary to determine the provision of access records for an email address, located in the generic domain name‘ .com ’”.

In the vote of the Reporting Minister, the following considerations were adopted regarding the hypothesis under judgment: (1) the addressees of the offense are domiciled in Brazil and received the offenses in the country; (2) the receipt and reading of electronic messages took place in Brazilian territory; (3) the application provider is a subsidiary company destined exclusively for operations in Brazil, but belonging to an economic group with worldwide operation; (4) the controversy involves application records.

In this way, “the offenses and threats sent through electronic messages […] can be considered as occurring in the national territory”, which attracts, depending on the vote of the Reporting Minister, the home jurisdiction to judge the controversy. This is the reason why the implementation of an offense against Brazilian law in an application hosted abroad authorizes the judicial determination aimed at removing the content or identifying the author of the conduct.

Minister Ricardo Villas Bôas Cueva added in the vote that even before the publication of the Marco Civil da Internet, the STJ’s jurisprudence had already consolidated itself in the direction that subsidiary companies act as true representatives of their foreign parent companies, being able to answer for their acts in the country. This became even clearer, as explained in the vote-view, with article 11, § 2 of the Marco Civil da Internet “by establishing that the activities related to custody and the provision of connection and registration records are subject to Brazilian law. of access to internet applications carried out by a legal entity headquartered abroad ”.

In the decision of REsp nº 1,745,657 / SP, the criteria for departing from the rule of territoriality of jurisdiction in cross-border internet conflicts were consigned: “(1) strong legal reasons of merit, based on local and international law; (2) proportionality between the measure and the desired end; (3) observance of the procedures provided for in local and international laws ”.

The Special Appeal was dismissed, maintaining the ruling of the Court of origin that had determined the continuation of the execution of the astreintes due to the breach of the judicial order of supply of the data that identified the email user, author of the offenses.

Wilson Sales Belchior