Who knows minimally functioning of Criminal Justice in Brazil can not be deceived : it is generally slow and scrapped . Civil urgent measures in the universe are more effective in these cases . Anyway , there was intention to fill a gap in Brazil , already jaded by " popular clamor " . In the interpretation and application of this Law legal operators should pay attention to the tacit authorization of breach of confidentiality, the intimacy of the investigation , and anyone can be enrolled in this situation . The Act has broad interpretation and the penalties are low (usually up to two years ) , so the chance to right prescription in most cases . For all these reasons , do not trust the preventive efficacy of this law . Guardianship Civil conditions would be more efficient .
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| Brazilian Professor Kennedy Barreto talks about internet security in your country |
Although the internet has been around for a long time , the Law Courts and consequently , can not seem to follow the evolution perceived with a minimum of attention. When trying to equate with the national law of other nations , it distorts the laws homelands and therefore undermines those who suffered from unlawful acts , because they can not be compensated monetarily at least , a way to try to minimize their suffering .
Existing technologies do not allow a user to be correctly identified , if necessary , even with the use of IP addresses which are stored by the companies . It is easy and common that the same address is used by numerous people and the existence of servers in order to hide the actual address of the user are crucial facts to prove that such a feature can not be used as evidence , but rather , just and only as an indication of authorship.
The lack of standardization and synchronization of dates and times of access also allow misidentification of the charge , which can lead to injustice and punishment for people who were not involved in the commission of unlawful acts , generating even more controversial about a judicial system lacking good results .
The responsibility of content providers , especially social networks like Orkut , Facebook , Twitter and others, is objective . This is because such companies do not bother to meet the minimum requirements required by national laws , not properly identifying users . The argument used for the storage of the IP address is sufficient for correct identification of these , do not prosper , and even that not even in U.S. courts this argument is accepted .
The primary function of such networks is the communication of users through texts , images , audios and videos , which in itself fully configures the theory of risk and demonstrates the direct relationship between the core and the vulnerability that such platforms have to allow that users might commit unlawful acts. Moreover , the lack of appropriate channels as a means of contact for people who have been victims of these crimes demonstrates that there is no interest , even minimal , preventing damaging facts nor quick response removing inappropriate content from their systems when done one complaint.
Serious flaw is the lack of appropriate tools to control the content provided . There is no talk here of censorship or any other kind , but of utilities that allow greater control over what is published , avoiding, for example, those listed in Estatudo the Child and Adolescent , among others , which can be done with relative ease by these companies , since they already have mechanisms that scan the content and form of targeting for advertisers , maximizing profit opportunities . Also , there should be professionals tasked to scour the deck incessantly checking reports of users acting as moderators , which already occurs in the vast majority of internet forums .
It seems, therefore, that the Supreme Court was wrong to assert that there is no strict liability of the content provider , where such social networks , to those who have suffered harmful acts , given that there are situations in our laws and doctrine to preclude the such responsibility and risk provided directly by the activity performed , and so little a way minimally effective to identify properly the criminal agent , with the aggravating no further mechanisms consistent and easy to use so you can get in touch , proving that the real interest of these companies is solely profit.
Kennedy Barreto
kennedybarreto@uol.com.br
Consultant and Professor of Law.