“Experts disagree on legislation against digital crimes.” The Metrópoles publication included comments from Partner Flávia Pietri.
“Experts disagree on legislation against cybercrimes.” The publication of Fabio Serapião’s column in Metrópoles featured comments from Partner Flávia Pietri.
The rise of cybercrime in Brazil has posed concrete challenges to the legal system. Investigations involving large-scale scams, data leaks, child enticement, online stalking, and networks that spread hate speech have become part of the routine for those working to combat crimes committed online.
To combat this, the country currently has a set of regulations that, according to some of the experts interviewed for this column, are sufficient to address these new forms. Others, however, point to significant gaps in the legislation, which still fail to keep pace with the specific dynamics of the digital environment, especially regarding the use of Artificial Intelligence.
The Brazilian legal framework for dealing with cybercrimes is formed by various laws that have been updated over the years. The Penal Code, for example, already covers conduct such as hacking into a computer device and disseminating, selling, or displaying intimate images such as nudity, sex, or pornography without the victim’s consent.
The so-called Carolina Dieckmann Law, enacted in 2012, was a landmark in criminalizing system hacking and improper access to personal data. The 2014 Brazilian Internet Bill of Rights (Marco Civil da Internet) defined principles for internet use in the country and established rules for record keeping and provider operations.
Subsequently, the General Data Protection Law (LGPD) reinforced companies’ responsibility for handling personal information, including providing for sanctions in cases of data breaches.
Despite this set of regulations—which also encompasses several other provisions—experts point out that significant gaps remain. One of the points cited is the difficulty in applying existing legislation to complex and technically sophisticated situations.
“Considering the gravity of what we’re seeing, and its massive scale, we need to move faster than we are,” says attorney Flávia Pietri, a specialist in Digital Law and Data Protection.
She believes that current laws address many types of cybercrime, but not all. She expresses concern, for example, about the advancement of Artificial Intelligence as a criminal mechanism, which still lacks specific classifications.
“The use of all AIs has increased exponentially, and they are certainly being used in criminal matters at the same exponential rate. And here we have one of the biggest gaps, in my view, which is this lack of specific regulations regarding AIs,” says Flávia.
Michele Prado, founder of Stop Hate Brasil and a researcher on online radicalization, highlights another limitation: the difficulty justice systems sometimes face in understanding the dynamics of extremist groups and networks online. These communities are typically involved in crimes against children and adolescents in the digital environment.
“In Brazil, we have many legal gaps in this area. We also lack an understanding of what constitutes online radicalization, online violent extremism, online terrorism, etc. Many gaps. And another thing is that Brazil is a country with many social vulnerabilities, and these networks focus on recruiting socially vulnerable children and adolescents,” he told the column.
For cases involving minors, the Child and Adolescent Statute (ECA) establishes specific protection mechanisms, while Law 13,441/2017 allows agents to infiltrate digital networks to investigate crimes such as grooming and abuse—a strategy that has been part of the daily work of authorities involved in such investigations.
In 2023, Brazil also joined the Budapest Convention, an international treaty that strengthens cooperation between countries in combating cybercrime and facilitates the collection of evidence in transnational investigations.
The treaty, in Flávia Pietri’s view, was one of the greatest achievements in recent years for Brazil, particularly in the field of child pornography. She also emphasizes the transnational nature of the proposal.
“The main focus of this convention is to address child pornography in a more forceful manner. And it’s interesting to keep in mind that this convention has been ratified by many other countries, so it has this international fluidity, understanding that what is being considered here is also considered in other countries. Precisely because the internet knows no borders,” she states.
For Luisa Watanabe, a criminal lawyer, while agreeing that there are gaps in the legislation, especially when it comes to technological innovations like AI, she understands that these gaps are part of the very nature of a legal framework.
“Law is a social phenomenon, so things happen, and the law has to rush to catch up and ultimately regulate, and, in the end,
and, in the criminal sphere, introducing measures to curb them, possibly by criminalizing some behaviors or increasing the penalties for others,” he states.
“Especially now, if we stop to talk about the use of artificial intelligence, Brazil, compared to European countries, is behind in this regulation. So, there will be, there is indeed, a gap, but we can’t say that our country doesn’t have a legislative framework,” he reflects.
Similarly, Alesandro Barreto, coordinator of the Cyber Operations Laboratory (Ciberlab) at the Ministry of Justice, also agrees that current laws are capable of curbing the illicit practices seen in the digital environment.
“We have laws, we have our legislative framework. And it is very comprehensive and robust. And so, we who are here day-to-day, and we haven’t missed it,” he said, referring to the day-to-day cybercrime investigations he faces at Ciberlab.
He reinforces his argument with a close analogy: “Suppose you have an electric car and it breaks down and causes an accident. Is there a law specifically for electric cars? No. And do we need to do this?” No. Because we have a 1990 law, the Consumer Protection Code, which addresses the responsibility for providing services,” he states.
The disagreements among experts also impinge on the role of legally mandated penalties. One of the issues cited by authorities regarding the penalties applied in cybercrime cases is the high incidence of minors who, even at a young age, already commit a series of crimes online.
According to Lisandrea Colabuono, coordinator of the Digital Operations and Coordination Unit (NOAD) of the São Paulo Civil Police, many of the offenders are minors. In these cases, despite being held accountable for their actions, the applicable sanctions are, for example, hospitalization or psychological counseling.
“They come back as heroes. And since they’ve already been through it, they make up stories. We have cases where the minor was even arrested again because of this [cybercrime]. He returns saying that at Fundação Casa, where he was, he was served like a king, and the others believe him,” Colabuono reports.
As for cases involving adults, although it’s not a unanimous opinion, Flávia Pietri argues that the legislation still doesn’t treat these crimes with due weight and advocates for harsher penalties in certain situations.
“For a prison sentence of 1 to 3 years, we have a series of benefits within the legislation, and if you change this regime from a semi-open prison regime, a lot of things will happen.
On the other hand, criminal lawyer Paulo Klein tends to think differently. According to him, increasing sentences doesn’t effectively contribute to combating crime, including digital crimes, and the solution to the current problem in Brazil must go beyond that.
“We need to discuss education and prevention, because repression and increased sentences have never been and never will be a way to prevent crimes. This is a fallacy. This is something the population, the educated community, likes to hear, but in practice, it doesn’t work,” he states.
“A criminal won’t stop committing crimes because the sentence is high or low. A criminal is a criminal. I don’t believe in increasing sentences or creating new types of penalties as a solution to this problem we face today. We have to change our educational paradigms,” he reiterates.
Portal Metrópoles, 9:05 AM, July 19, 2025
https://www.metropoles.com/colunas/fabio-serapiao/especialistas-legislacao-crimes
