Comment Re:Is this really You-tubes fault (Score 1) 387
First, IANAL, so take this with a grain of sugar.
There is freedom of speech, yes, but the videos probably wouldn't be considered protected speech. AFAIK, there is freedom for opinions (Constitution Art. 5 IV), but not anonymous opinions. I think Youtube would be mad if they tried to claim that their free speech is being violated, because it is not their speech that the videos represent. If it is, then they would be responsible for the damages caused by any video. In this case, Art. 5 X says that privacy, honor and image are untouchable and that damages are due in case of violation. Cicarelli case is probably based on this article.
I think that their better defense would be: we are a tool for publishing videos, but it was not we who posted it and the government cannot mandate that we censor it, because there is another freedom (Art. 5 IX) of intelectual, artistic, scientific or communication expression, which cannot be violated and are independent of censorship or license. Which means, AFAIK, that the judge couldn't have punished youtube for not censoring videos, since censorship is completely forbidden.
Interestingly, since you mentioned how unpleasant a judge could make the life of a person, ordering police to appear at 2am, in Brasil, it is forbidden for police to enter on houses during the night because of a court order (Art. 5 XI).
It seems that one of the checks on the lower court decision failed, since it was a state justice that gave that injunction. For that to happen, someone might have appealed the lower court injunction. Then, by what I understand, the higher court justice misunderstood the scope of his decision and ended up granting what the plaintiffs requested: blocking youtube traffic. We will see what happens monday after a weekend of angry phone calls from people affected by this. If I understand it right, the justice might not be pleased at being deceived.
I think it is even possible that someone will request an injunction against that justice so that he will unblock youtube citing public interest. When that justice order the blocking of the youtube video, he mentioned that the video was not in the public interest (even though it generates public interest). But if they blocked everything, it is very hard to argue that no other video on the site carry the public interest. So, I'd bet Brasil Telecom will lift the block on monday and that will be it.
There is freedom of speech, yes, but the videos probably wouldn't be considered protected speech. AFAIK, there is freedom for opinions (Constitution Art. 5 IV), but not anonymous opinions. I think Youtube would be mad if they tried to claim that their free speech is being violated, because it is not their speech that the videos represent. If it is, then they would be responsible for the damages caused by any video. In this case, Art. 5 X says that privacy, honor and image are untouchable and that damages are due in case of violation. Cicarelli case is probably based on this article.
I think that their better defense would be: we are a tool for publishing videos, but it was not we who posted it and the government cannot mandate that we censor it, because there is another freedom (Art. 5 IX) of intelectual, artistic, scientific or communication expression, which cannot be violated and are independent of censorship or license. Which means, AFAIK, that the judge couldn't have punished youtube for not censoring videos, since censorship is completely forbidden.
Interestingly, since you mentioned how unpleasant a judge could make the life of a person, ordering police to appear at 2am, in Brasil, it is forbidden for police to enter on houses during the night because of a court order (Art. 5 XI).
It seems that one of the checks on the lower court decision failed, since it was a state justice that gave that injunction. For that to happen, someone might have appealed the lower court injunction. Then, by what I understand, the higher court justice misunderstood the scope of his decision and ended up granting what the plaintiffs requested: blocking youtube traffic. We will see what happens monday after a weekend of angry phone calls from people affected by this. If I understand it right, the justice might not be pleased at being deceived.
I think it is even possible that someone will request an injunction against that justice so that he will unblock youtube citing public interest. When that justice order the blocking of the youtube video, he mentioned that the video was not in the public interest (even though it generates public interest). But if they blocked everything, it is very hard to argue that no other video on the site carry the public interest. So, I'd bet Brasil Telecom will lift the block on monday and that will be it.
