Several bills pending before the Brazilian Congress seek to institute harsher penalties for crimes against honor and reputation when perpetrated through social networks. Below, you find a summary of the proposed changes to the present Brazilian legal framework and how those changes may impact intermediary liability.
1. The status of crimes against honour in Brazilian law
The Brazilian Criminal Code regulates four conducts as crimes against the honor. They are slander (Article 138), defamation (Article 139), libel (Article 140), and disrespect (Article 331). The first of the three operate against any person, and the fourth, disrespect, must be necessarily perpetrated against a government authority with regards to their function.
The maximum base penalties for the crimes of slander, defamation and libel are up to two years, with the possibility of increase by one third in four special cases (Article 141). These crimes, moreover, have their corresponding penalty doubled if there is promise of payment, or actual payment, to the perpetrator. The penalties are calculated in years of “detention” (meaning that “semi-open” and “open” regimes are employed), rather than "reclusion" (implicating time served fully in a penitentiary). No crimes against the honor, currently, are punishable by “detention”. Only the hypothesis of recidivism, or crimes which result in a penalty superior to four years, are punishable by any of such regimes. Crimes with penalties shorter than four years, which also do not constitute recidivism, must be converted in alternative penalties, encompassing fines and mandatory social works.
Currently, Brazilian law does not considered any crimes against honour as “heinous crimes,” a special category of crimes punished by reclusion, with no possibility of progression to a more lenient regime, amnesty or bail, and not bound by the statute of limitations. Moreover, there is no criminal liability for Internet intermediaries in Brazilian law.
2. The proposed reforms
There are three bills regarding the matter, which have been consolidated and will be voted jointly by the Congress. Two of them, bills 215/2015 and 1547/2015, regard solely criminal liability for crimes against the honour of individuals. Through both of them the Congress seeks to institute harsher penalties for such crimes when perpetrated through the use of social networks.
The latest bill, number 1589/2015, bears similar proposed changes to criminal law, although attributing harsher penalties than the other two. In addition to these changes, it also bears various proposed provisions to drastically change obligations of internet providers and their liabilities.
2.1 Reforms regarding direct criminal liability
Drafted in 2014, the Federal Bill 215/2015 was originally a proposed reform of Article 141 of the Brazilian Criminal Code. By the original text, a fifth hypothesis would be added: (V) “through the use of social networks”. Since its proposal, the bill has been amended by various congressmen, and absorbed two other similar, posterior, bills: 1547/2015 and 1589/2015.
Bill 1547/2015 had a similar provision to bill 215/2014. It incorporated a proposed text for the addition of a fifth hypothesis for the increase of penalty contained on Article 141, very similar to the amendment proposed in bill 215/2014, with a slightly different wording: “in sites or through means of electronic messaging spread through the Internet”. It also included a proposal for reform of the Criminal Procedure Code, to obligate the competent authorities to print the content which would constitute the crime in order to “safeguard copy of the offensive material to compose the future police investigation and possible criminal action.”
The third joined bill, 1589/2015, differs substantially from the previous two. It institutes two paragraphs in Article 141:
“§2, if the crime is perpetrated through content made available on the Internet, the penalty shall be doubled”; and
“§3, if the slander, defamation or libel cause acts that result in the death of the victim, the penalty shall be of reclusion and applied five-fold.”
A provision also exists to make the crimes under the new two paragraphs prosecutable by the public authorities, independently from charges being pressed by the offended party. Moreover, there also exists a provision to constitute heinous crimes those resulting in death of the victim, as well as a provision excluding the possibility of bail in the case of paragraph 3. Finally, the 1589/2015 bill also includes a general rule, applicable to every crime, that obligates judges to estipulate a minimum reparation of damages for civil liability in all sentences.
2.2 Reforms regarding intermediary liability
Of the three bills, only bill nº 1589/2015 addresses intermediary liability and includes provisions altering the recently enacted Marco Civil da Internet (MCI). Some of such provisions address intermediary liability directly, and the remainder of them alter the obligations of online intermediaries, hence making them indirectly liable for offenses. Specifically, Articles 10, 13, 15, 19, 21 and 23 of the MCI are proposed to be changed or adapted.
- Proposed article 23-A institutes the possibility for law enforcement authorities to request sensitive data to their guardians, in order to enable them to initiate criminal investigations on crimes against the honor perpetrated through the Internet, when no other means are available for producing such proof, and subsequently to bring charges to individuals involved. In consonance to proposed Article 23-A, two paragraphs of Article 10 of the MCI, which deal with limitations to the making available of sensitive data by its guardians, are proposed to be changed. The current provision requires a judicial order for obtening the data. The proposed amendments would add the locution “or by request of the competent authority”, waiving the requirement of a judicial order for authorities to obtain them.
- Complimentary to the changes to Article 23, the bill also alters the texts of paragraph 5 of Article 13 and paragraph 3 of Article 15, dealing with the responsibilities of Internet access and hosting providers over the safeguard of private data, as to make them coherent to the new form of requisition by “competent authorities.”
- Proposed article 23-B defines as crime the act of unlawfully requesting or making available sensitive data, punishable by up to four years and fine.
- Article 19 of the MCI, which deals with intermediary liability, is also proposed to be changed by instituting, at paragraph 3-A, a right to be forgotten, conditioned to specific judicial order: “The individual or his legal representative may require judicially, at any time, the unavailability of content that relates his name or image to crime of which he has been absolved, after due process, or to slanderous, defamatory or libellous fact.” Proposed paragraph 4-A complements proposed paragraph 3-A, and sets the possibility for preliminary injunctions over the matter.
- In addition to the current intermediary liability of Internet hosting providers set by Article 21 of the MCI, proposed Article 21-A sets intermediary liability for Internet access providers who fail to comply with the order of making "unavailable" the content indicated in Article 19 of the MCI.
“The Internet connexion provider that fails to take action to make unavailable the content to which art. 19 refers shall be liable to the payment of a fine of R$50.000,00 (fifty thousand reais), applied in double in case of recidivism, notwithstanding other civil or criminal sanctions applicable.”
Although the text of proposed Article 21-A specifically addresses Internet access providers, it makes reference to Article19, which specifies the liability of Internet hosting providers for failing to comply with a court order requiring to make content unvailable.
3. The legal implications of bill nº 1589/2015
The proposed reform of Brazilian law would have a major impact on direct liability and intermediary liability for crimes against honor and reputation perpetrated through the Internet.
- The change in prescribed penalties would result in maximum penalties, for the crime of slander, of four or ten years if the crime is perpetrated through content made available on the Internet or results in death of the victim, respectively. If an hypothesis of increase of the penalty is applied, the sentences can result in penalties of 5 years and 73 days and 13 years, respectively.
- Proposed paragraph 3 of Article 141 would make the crime punishable by “reclusion”, in lieu of “detention”. Combined with the proposed change to make such a “heinous crime”, the penalty would be served in a penitentiary for its first two fifths, or three fifths in case of recidivism. As such, the maximum penalty of 13 years would result in imprisonment for five years and 73 days, or for 7 years and 292 days in case of recidivism.
- Proposed article 23-B, that defines as crime the act of unlawfully requesting or making available sensitive data, is the first hypothesis of direct criminal liability of an individual linked to an Internet provider. This represents the possibility of direct criminal liability of an individual acting as an intermediary on the Internet.
- Internet hosting providers would theoretically maintain the same degree of liability currently attributed to them by the Marco Civil da Internet, as the text of proposed article 21-A specifies Internet access providers, in lieu of Internet hosting providers. Access providers, however, would be liable to paying fines for the omission in making content unavailable. Further alterations or corrections to this text may still be made, and the text of proposed article 21-A may change to include Internet hosting providers.
Felipe Octaviano Delgado Busnello is a qualified Brazilian attorney active in the field of internet and intellectual property law. He can be reached at felipe.busnello at gmail.com.