Legal analysis

Brazil: Draft Cybercrimes Law

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ARTICLE 19

02 Feb 2012

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In January 2012, ARTICLE 19 analysed the Brazilian Senate’s Substitute Act to the House Bill No.89 of 2003 (“Draft Law”). The Draft Law proposes the creation of new provisions relating to the prevention, detection and punishment of crimes committed with the use of the Internet. ARTICLE 19 is seriously concerned that a number of these provisions are antithetical to the rights to freedom of expression and information and therefore makes a number of recommendations to bring the Draft Law into compliance with international standards. 

The Draft Law provides no guarantees for the right to freedom of expression or information. We are also concerned that provisions not only undermine these rights, but are also incompatible with legislation pending before the Brazilian legislature that attempts to secure fundamental rights online.

The Draft Law retains a number of provisions that would transform private companies responsible for delivering Internet services into an online police force. It is possible that the Draft Law would require these entities to report to the police alleged violations of the criminal law and impose criminal liability on parties that fail to exercise those responsibilities. The same provisions require the mass surveillance and data retention of all online communications by the same unaccountable private bodies for a period of three years, with few restrictions on the circumstances under which a court could order the disclosure of that data. Similar provisions have already been found unconstitutional in numerous European countries, and the Brazilian government seems eager to set the stage for a similar clash in its own courts.

The Draft Law also contains vague prohibitions on “treason” through the sharing of electronic data as well as broad provisions on the protection of personal information. Both of these provisions potentially restrict the ability of whistleblowers to disclose information in the public interest. Other problematic provisions include ambiguous restrictions on access to computers and the acquisition and transfer of data that do not require a showing of intent for the imposition of criminal liability. These potentially criminalise everyday uses of computers that cause no harm. Similarly, crimes related to the “dissemination of malicious code” also lack intent requirements.

ARTICLE 19 urges the Brazilian Government to substantially revise a number of provisions in the Draft Law to ensure respect for the right to freedom of expression and information in the country.

Recommendations

  1. The Draft Law should assert the application of the rights to freedom of expression and information to all electronic forms of communication, including on the Internet.
  2. Intermediaries cannot be required to monitor and report upon alleged violations of the criminal law online. Likewise, these entities should not be subject to criminal or civil liability for failing or refusing to engage in that conduct.
  3. Blanket requirements for Internet intermediaries to collect and retain data relating to online communications must be removed.
  4. Provisions prohibiting “access” to computer systems and the acquisition or transfer of data in violation of security measures must require a showing of intent for the imposition of criminal liability.  
 

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