Criminalization and the Internet: Are your online behaviors National Congress’ targets?

The regulation of social conduct by means of the Law and application of sanctions to the violations of rules is not recent practice. This model is also applied in the case of conducts practiced through the Internet, since this space is currently considered a practice environment common to social life, such as organizing meetings, finding friends, evolving professionally.

After the 2018 election, the National Congress has redefined (and has also maintained) legislative priorities, and the regulation of practices developed in cyberspace are often the subject of proposed bills this year. Therefore, considering political interests and cultural constructions, we must ask ourselves: does the legislative tendency under the online environment preserve the idea of ​​ultima ratio of criminal law or follow the punitive and protective discourse of the national common good? In the first part, this post will present the current legal scenario that disciplines the use of the Internet in Brazil. Subsequently, we intends to present some PLs that process in the National Congress in order to bring the reader closer to the legal construction of a society in which all are (or should be) belonging

What is the Law of the Internet?

The lack of technical knowledge about the functioning of the internet, as well as its extraterritorial dimension and physical distance between users, sometimes generates the understanding that online information exchange is completely intangible or metaphysical. Therefore, it would not be an environment capable of applying rules and sanctions designed by the State. However, the statement that the internet is land without law is outdated.

According to Lawrence Lessig, conduct can be regulated by four models: architecture, morality, economics and law. According to the Brazilian system, the legal framework was the main frame in the pursuit of the regulatory objective, including cyberspace.

Even before the Internet is widely used in Brazil, the domestic legal system prohibits, by the Penal Code of 1940, acts of slander (article 138), defamation (article 139) or insult (article 140), as well as prejudice or discrimination (article 20) in Law 7.716 / 89. The legal articles do not specify the situation or mean of the crime so that it is characterized, therefore, when these behaviors are practiced in the Internet also applies the current legislation. In addition, in the case of violation of image rights, for example, the Constitution and the Civil Code also confer legal protection. Therefore, these behaviors that are also developed in the virtual environment are already established legally.

In 2013 came into force Law 12,737/12, known as the Carolina Dieckman Act. This Law criminalizes in a specific way or details penalties and criteria of computer crimes, such as invasion of computer device, interruption or disruption of computer service and falsification of private document. In this way, a specific law is established for crimes that use the Internet and computerized mechanisms as means of crime or crimes per se.

In addition, in 2014, the Brazilian Civil Rights Framework for the Internet was enacted, Law 12.965 / 14, known as the Constitution of the Internet and regulates the use of the Internet in Brazil. The main innovation of this device is the guarantee of privacy and data protection of the user, as well as predicting situations for removal of content online, preserving both the right to freedom of expression and personality rights.

What can change?

In this section, we will present bills that currently pass through the National Congress and are about crimes developed through or through the internet

• PL 7544/2014 – Incitement to the Virtual Crime

Authored by Ricardo Izar – PSD / SP, the proposal includes in the Penal Code (Decree-Law no. 2,848, dated December 7, 1940) a new criminal type, that of Virtual Incitement to Crime. The congressman justification for incorporating this practice as a crime is that the improvement of technologies, “the freedom to disclose and discuss any subject has become more and more prominent.” However, people would not be “prepared to analyze unpleasant, difficult, criminal situations, or are not mature enough to filter out what may or may not be disclosed.”

For this reason, especially if the Penal Code already has the crime of incitement to crime (article 286), the current penalty for this violation is detention, from three to six months, or a fine. The crime proposed by PL 7544/2014 has the same initial penalty as that established by the Penal Code. However, the legislative innovation of the PL is that the penalty can be aggravated in ⅓ and the perpetrator respond concurrently for the crime of incitement to virtual crime and other crimes.

However, the imprecision and scope of this criminal type is highlighted, since it incurs in the crime that publishes in social networks, for example, any content that incites violence.

• PL 1696/2019 – Crime of stalking

Authored by Captain Assumption – PSB / ES, the Bill also adds an article to the 1940 Code, art. 146-A, which provides for the crime of stalking. The penalty for this crime is imprisonment, from 01 to 04 years, in addition to the obligation to maintain a reasonable distance from the victim, determined by the judge, if necessary, or a fine.

Until then, the article. 65 of the Criminal Offenses Act, whose penalty was simple imprisonment of fifteen days to two months, or fine. In addition, article 7 of Law 11.340 / 2006 (Maria da Penha Law) are the devices that sanction the persecution of the person.

According to the author, the legislation was proposed “because of the diversity of behaviors that the persecutor may assume, the magistrate will carry out the task of individualizing the sentence, so as to allow re-socialization or imprisonment over time necessary for the application of criminal law. ”

• PL 6812 / 2017– Crime of sharing false or incomplete information on the internet

Whether during the plebiscite on the Brexit or Brazilian elections of 2018, and various political and social events, the phenomenon of disinformation and dissemination of Fake News was the subject of the most varied social groups. In addition, surveys that have pointed out the relationship between the manipulation of the information conveyed by online channels and the achievement of electoral results have developed an interest of the political agents in legislating on such situation.

Deputy Luiz Carlos Hauli – PSDB / PR, is the author of the PL that criminalizes the disclosure or sharing of false information or detrimentally incomplete to the detriment of individuals or legal entities. The penalty for such a crime would be for detention of 2 to 8 months and payment of 1,500 (fifteen hundred) to 4,000 (four thousand) days-fine.

The congressman in question justifies the legislative proposal in less than half a page, 4 paragraphs, in fact.

Before the end of the last parliamentary term, when all the bills in process are filed, the rapporteur of the Commission for Science and Technology, Communication and Informatics (CCTCI), Mr. Celso Pansera, rejected the proposal with the justification that it would be prudent to evaluate the impacts of the recently approved General Data Protection Act on society and communications before adopting other legislative measures.

Several other PLs have been joined to this and, currently, the project is in the CCTCI, whose report is from the Department Vinicius Poit (NOVO-SP)

This and several other bills in process are subject to criticism. Since the lack of technical rigor in the definition of criminal types, even the application of the principle of proportionality in the definition of penalties are arguments to be raised. In addition, the use of Criminal Law is also criticized as the first method of resolving social conflicts and a method of state control, and Criminal Law, as mentioned above, is (or should be) the last mechanism of law, since it affects main individual freedom of the human being: freedom of movement. However, considering the main feature of the Brazilian legislative system, to be the house of popular representation, it should be considered the level of interaction between the authors and debaters of the law with the society that will be affected by the law.

If you want to know more about the use and conduct bills developed on the internet, go to the IRIS website and have access to content such as the text on PLS 471/18, also on false news.

The views and opinions expressed in this article are those of the authors.