Digital Law is the “evolution of Law itself, covering all the fundamental principles and institutes that are in force and are applied until today, as well as introducing new institutes and elements for legal thought, in all its areas.”
This vision is attractive because it does not consider the digital as a separate world but a reality that cannot be ignored or distinguished from the “real.”
In other words, it is necessary for the Law to evolve as an area of knowledge to incorporate the problems and possibilities brought about by network communication.
This happens by adapting existing fundamental principles or adding new legal thinking elements.
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Features Of Digital Law
Digital Law should not characterize as a new civil and criminal law branch.
Patricia Pinheiro’s definition, as well as the understanding of other specialists on the subject, is that it is a reinterpretation of traditional Law in the face of the impact of the Internet on society.
Thus, it isn’t easy to talk about digital Law in a way that does not present situations where the need for this reinterpretation will manifest.
In Brazil, for example, there is no specific court to judge crimes and other issues that take place in the virtual environment, for example.
In the Civil Police, on the other hand, there are already specialized centers in the fight against cybercrime spread throughout Brazil – see this link for the different states served.
What happens is that Brazilian legal institutions and the rest of the world are adapting as new legal dilemmas arise with the advancement of technology.
Some of these dilemmas will resolve with the elaboration of new norms. But others are taken to higher courts, which adjudicate the matter using an established legal framework.
Thus, We Can Characterize Digital Law From Two Biases:
Legislative: the creation of laws to regulate online conduct and establish new criminal types occurring in the virtual environment
Interpretive: application of current laws to already known situations, considering the particularities happening in the online environment. digital law application examples
In recent years, Digital Law has gained space and already has some famous cases
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Examples Of Applications Of Digital Law
An example of the application of legal Law in the legislative bias is the creation of Law Nº 12,737/2012, which became known as the Carolina Dieckmann Law.
The Law adds article 154-A to the Penal Code, creating a criminal offense that criminalizes the invasion of someone else’s computing device to obtain, tamper with or destroy data or information without the holder’s authorization. The name of the famous actress is due because it was a personal drama that motivated the Law’s passage.
In 2012, she had intimate photos stolen by hackers, who demanded a certain amount of money not to disclose them on the network. However, the actress did not give in to the extortion attempt, and the photos became public.
Note that this is a different case from traditional robbery or theft, where the criminal is present to steal a physical belonging from the victim. .Perhaps the most common examples are crimes of slander, defamation, insult, or threat, practiced in emails, social networks, and applications such as WhatsApp.
There are also issues in consumer law (shopping made online), employment law ( checking emails outside of working hours ), family law (infidelity via dating app sites), and others.
And there are also several situations in which one is caught in the middle when the absence of a specific law raises doubts about the appropriate legal framework and motivates the discussion about the need to regulate the issue.
In several cities in the country, the impasse motivated the approval of laws to regulate the operation of the application, including a federal device, with Law 13.640/2018. Telephone operators (against WhatsApp) and hotels and real estate (against Airbnb ) are similar examples
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Digital Law And How The Civil Framework Works
The United States and Europe are a few steps ahead of Brazil regarding digital Law. They have already discussed issues that the public authorities have not yet problematized. One example is the GDPR, a European cyber law protecting personal data that will undoubtedly influence Brazilian legislation.
With the digitization of management and communication processes in private companies, public offices, and personal operations, new legal issues in the digital world will continue to arise in Brazil.
The Marco Civil was a significant advance in the government’s attempt not to make the Internet a “land without law.”
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Digital Law Features
The Civil Rights Framework for the Internet brought some changes to the world of telecommunications. The text of the Marco Civil da Internet mainly concerns network neutrality and the processing of users’ data. The principle of neutrality means that there can be no difference in the type of use of the network.
Thus, a mobile internet plan to access WhatsApp, for example, will not allow. As for privacy, the Law provides for the inviolability and secrecy of online communications, regulating the monitoring, filtering, analysis, and inspection of content.
Digital Right To Freedom Of Expression
- As it could not be otherwise, freedom of expression is also a fundamental right in Digital Law.
- Freedom Of Expression On The Internet
- One of the best-known rules of our Federal Constitution is the one we find in article 5, item IX :
- “IX – the expression of intellectual, artistic, scientific and communication activities is free, regardless of censorship or license.”
- Marco Civil reinforces this constitutional provision, basing the discipline of internet use in the country on respect for freedom of expression.
- The idea is that, with this rule, technology companies that make it possible to share information do not veto specific messages for fear of legal sanctions.
- But the Law does not address the company’s conduct that, even with this legal safeguard (of not being held responsible for what third parties publish), deletes content posted on its channels.
- This issue came to light recently when Facebook deleted profiles that spread false information, the so-called fake news.
- Critics of the social network’s attitude argue that the Marco Civil rule serves precisely so that there is no editorial control or censorship between providers.
- Therefore, here is a beautiful example of how even laws created to regulate controversial Internet issues are complex to apply in some dilemmas that arise in the digital world.
- It is also worth noting that today, with so many environments in which anyone with an internet connection can express their opinion freely, the cases of lawsuits that confront the notions of freedom of expression and crimes against honor are on the rise.
How Digital Law Is Impacting The Lives Of Lawyers
Digital Law presents itself as another possible area of specialization for lawyers.
As the internet influences practically every sphere of our life, it is clear that knowing its intricacies is essential for any legal professional. After all, as we have explained before, in all branches of Law, there are applications of digital Law.
However, anyone who wants to work in this area must commit and seek a more profound knowledge of some technologies. Understanding how encryption works, for example, is fundamental in the discussion of privacy and security.
Ideally, the lawyer should like technology and keep in mind that he can never stop studying because it is an area in which every month there are new advances and ethical and legal dilemmas.
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