Legal analysis

Brazil: Draft Computer Crime Bill

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ARTICLE 19

07 Sep 2012

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In July 2012, ARTICLE 19 analysed the draft Bill PLC35/2012 of Brazil (the Draft Bill). The Bill has been proposed by Deputy Paulo Teixeira and others (hence, it has also been referred to as “Teixeira Bill”) as an alternative to the Cybercrime Bill, which received significant criticism from civil society organisations for its disproportionate criminalization of “everyday” internet use. ARTICLE 19 analysed the Cybercrime Bill in January 2012, stating that a number of its provisions violated international standards on freedom of expression and information.

This analysis applies the same standards to Deputy Teixeira’s alternative Bill and makes recommendations for strengthening its human rights protection.

ARTICLE 19 welcomes the spirit and intent of the Bill to limit the application of the criminal law to computer-related activities. It is also positive that the drafters of the Bill recommend that any new laws should only be enacted after the adoption of the Civil Rights Framework for the Internet in Brazil (also previously analysed by ARTICLE 19). We are also pleased that intention is an ingredient of the index offence. However, there are various shortcomings in the Bill that need to be addressed in order to make it compliant with international standards on freedom of expression and information.

In particular, ARTICLE 19 is concerned that the Bill fails to provide definitions of key legal and technical elements of the offences. The Bill does not require the proof of any harm as an element of the offence of obtaining or using ‘secret information’: nor does it provide for a public interest defence in relation this offence, which, in our view, is a major weakness of the Bill. Furthermore, ARTICLE 19 considers that increased penalties for offences committed against public officials are wholly unjustified. ARTICLE 19 urges the drafters of the Bill and the Brazilian legislature to revise the Bill in order to comply with international standards on freedom of expression and information.

Recommendations

  1. Key legal and technical terms of the offence must be defined, either expressly in the Bill or by reference to other laws, in particular terms such as “data,”’ “security mechanisms” and “computer systems.”
  2. The Bill should require proof of harm arising out of the criminal activity, particularly in relation to offences involving the obtainment or dissemination of “secret information.”
  3. The Bill should provide for a public interest defence in relation to the “obtainment of secret information.”
  4. Penalties for offences should be clarified and should not include minimum mandatory sentences, which unduly constrain the judge at the sentencing stage.
  5. There should be no inequity in the penalties for offences committed against public officials as opposed to “ordinary” citizens.

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