Wednesday, 30 May 2012

Privacy Invasion: almost a crime in Brazil

IP Tango is pleased to host the following piece from Felipe Rocha (Vaz e Dias, Arruda da Veiga Advogados & Associados). Felipe is a colleague of José Carlos Vaz e Dias, who is a member of the IP Tango team:
Privacy Invasion is almost a crime in Brazil – A new Draft in Perspective

In Brazil it is common to hear that the internet is a "lawless land". This statement, so it is repeated, for some, especially the laity, becomes a true premise if one considers that there are no specific laws dealing with privacy invasion, especially in the criminal sphere.

This conception of “lawless land” in Brazil is not totally correct. Certainly, the Brazilians who create, dispose of and circulate information and materials through the internet know really well that damage to third parties will be subject to compensation under the existing rules of the Federal Constitution and the Civil Code. However, there is no doubt that the lack of specific legislation on privacy (criminal penalties) creates loopholes and, in a sense, permission for invasion and disposal of private materials through the web without prior authorization of the owner or images.

Bearing in mind that there are more than 45 million Brazilians accessing and using the internet daily and that, therefore, internet marketing has become a locally powerful instrument of media and communication, the Deputies – Mr. Paulo Teixeira, Mrs. Luiz Erundina, Mrs. Manuela D’Ávila and others – proposed the Draft Law 2,793 in 2011 that frames internet private invasion and illegal cloning of credit cards, among other things as crimes.

This draft was processed in a fast track and approved by a plenary session of the House of Representatives in Brasilia on May 15, 2012. The next step will be to submit the draft law to the examination and, most probably, the approval of the Senate House.

This Draft establishes imprisonment of an infringer as a penalty that could vary from six months to two years, and the payment of a fine for privacy invasion and, most importantly to the IP community, for the unauthorized access to commercial and industrial information, whether through the internet or not.

According to the Draft Law, the illegal penetration or access to computer or devices
 of others (such as pen drives), whether connected to the computer network or not, in violation of safety mechanisms and with the destruction of data or information, and the installation of vulnerabilities or the obtaining of unfair advantage, will carry the minimum sentence of imprisonment for three months to a year, plus the payment of a fine.
The penalty will be increased from one-sixth to on- third if the violation results in economic damage to the infringed party and from one third to one half if the crime is committed against the President of Brazil, the Supreme Court, the House of Representatives, Senate, the state Legislature, the Legislative Chamber of the Federal District or City Council, governors, mayors, top manager of the direct and indirect federal, state, municipal or Federal District.

Another innovation proposed relates to counterfeits or the cloning of credit cards or debit cards. In these cases, the crimes are equivalent to falsification of private document, and the penalty could be prison from 1 to 5 years plus the payment of a fine.

Taking into account that the Senate will most probably approve this draft, it is believed that the proposed new law will make internet users and explorers more secure on using the web, both for fun and for business.

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