Digital Rights in Brazil : High-Tech and Cyber Legislation

Interview with Renato Opice Blum, Attorney and Partner at Opice Blum

First of all, would you like to share with us a little about the Opice Blum company?

We are mostly focused in Brazil. Our operations concern intellectual property issues, but we also work very hard in Internet-related problems like a leak of information, frauds, offenses, contracts, and corporate issues related to technology. That is why we work with software.

We started the company in 1997 as only three people. With the development of Internet in Brazil like a commercial fate, we started growing after 1999, working on contracts first before moving on to litigation with privacy issues. One needs to do what Brazilians do – they use the Internet in many different ways. They interact a lot with each other; they are number one worldwide at spending time on social networks. But all this good has its share of bad. Some branches like e-commerce are good for you, if you want to promote specific products but on the other hand, there are also lots of problems to be considered regarding trademarks, offenses against companies, frauds in internet banking – all sorts of legal matters that are related to the use of Internet.

Currently, we are sixty people working and focusing only in this area and on those issues. Brazil is growing a lot in this area: how to trade, keep and use information about people, corporations, images, audio – everything. How to deal with this is a big challenge for Brazil. Right now, we are creating legislation about Internet protection and about the crimes committed in that area but we understand that the whole world is struggling with those issues as well: how to develop laws in a very quick yet specific way and how to make this enforcement between countries? Today, we are living in a different world: the world of information and thus, we must act accordingly.

In what areas is Brazilian law lagging behind and in what areas is it the most advanced, if you compare it to other countries of the West?

This is a very good question. For example, we need to make better legislation for cyber crimes, more specifically regarding data protection. Right now, Brazil does not have such laws. However, we are looking at the European and Canadian models as inspiration to come up with our own model. My only concern is the time which we are quite lacking. We have been discussing this model for quite a long time. For that reason, we need to center the congress and vote, make a quick decision. On the other hand, we have much better specific laws in all the fields like child pornography. There was a change in 2009 which introduced very important penalties. Now, we are doing our job in a very professional way and the enforcement agencies are also doing very well.

Another example is regarding the electronic documents.

Since 2001, we have been able to sign those documents using a digital certificate, which has the same value as a physical signature with pen and paper. This is very good for our financial structure and system. With this measure, we can make contracts and deals in a very fast way, if compared with the regular way of doing things. Also, since 2006, we have been transforming our legal system very smoothly, moving from paper to electronic records. Right now, the Brazilian highest courts are able to work completely paperless with electronic suites and pass judgement quickly. We are very advanced in digital lawsuit filing as well as court procedures. All the Brazilian courts are either moving towards this approach or are already working in that manner. By 2015, they will be on the same wavelength.

What is the most prevalent issue among the people who have solicited your aid? Who are they?

We have several types of companies who come to Opice Blum. All companies, without exception, could be a victim or have a problem with technologies, especially now when everything is done by computer, using the Internet, electronic mail, etc. Basically, different kinds of clients have the same types of problems. On average, we have 2000 companies as our clients and each of them has two or three cases.

But what kinds of problems are we facing mostly? First, there is the leak of information. Information is leaked pretty much everywhere at every moment, therefore dealing with this is a major challenge. How can we prevent it? What should be done? A positive point here is that Brazilian courts are very fast to find out users who commit Internet crimes. Considering that clients have very limited time, they are able to discover the problem in the span of 2 or 3 days, so that a search and seizure operation can be carried out and criminals can be identified. The leak of information is the main issue our clients are currently facing.

The second problem is related to people’s image; information that can be held against a company. Like I told you before, Brazilians are very interactive people and therefore, they like to discuss about products, services, people, companies… And sometimes, when we use this freedom of information that is established here, we grow forward. However, in the midst of this freedom, there are instances when offenses occur. Such offenses are a crime that one can be sued for in Brazil. Then, he has to pay compensation for the victims of his actions.

The third problem is about fraud in relation to the internet banking. Every day, phishing scams are sent via junk mails. The fourth one is perhaps the most common. The Internet is huge and there are very broad possibilities to copy, to use, and to share content. Most of the time, this is done without authorization by using illegal ways. This is another challenge that we have all over the world.

About 40% of our clients are multinational companies from the United States and from Europe; as for the remaining 50% to 60% (an estimate), they are medium to big companies from Brazil. Right now, this is a huge field. Companies need to spend a lot of money, operations are very costly, so this is why they are not trying to make their rights respected by going to court, at least not yet.

From your experience, is it Brazilian companies suing foreign companies or vice-versa?

We have a mix here, depending on the type of field. For example: copyright issues. We have such cases where overseas companies are suing Brazilian companies, but the opposite is true as well… In the event of fraud, we have to find out where it occurred, so people provide information about their clients and users. Most of the time, we need a court order to reveal this. Most of the time, the ISP is not located here in Brazil but outside of the country, overseas. It is very common to have the judge order from Brazil and the ISP overseas complying and giving information to the Brazilian judge. You’re not suing directly the ISP but you need to involve them to have the information.

Let us go back to the topic of fraud. Let’s say someone stole information from Brazil or the United States, so there are suits concerning both countries. First, we need to find the location. Second, we need to find the person or the company. Most of the time, the lawsuit will be in the country where the people or the corporation is located. There are very important international law issues in my field.

It depends on the cases, but it can be very discouraging to go that far. Don’t you think some might think it so complex to go abroad, whether you go to Turkey or whatever other country?

Sometimes, my clients are aware of what they need to do, which is why they hire me to go to a foreign court, but also of how much it’s going to cost. Cost if very often an issue. If you are talking about international law cases, most of the time, you have to hire an attorney in another country. The good news, though, is that in most cases if you know who did the illegal act, you can the Brazilian Law and National Courts. Whenever a Brazilian entity receives a court order from other countries, it uses it to respond and give the information requested. To make things better and faster, we need treaties and conventions to hold this all together.

You cooperate with other lawyers all over the world. How do you work like that? You probably need another legal adviser somewhere else. How can you make yourself known to these people who might want to sue a company or a person in Brazil?

It is very important to have partnerships all around the world because very often, more information is needed and it is not located here. Information goes on the servers all around the world and we need access to it. There are also branches of this office – in the United States, for example – but the partnerships must be strong because we cannot work there ourselves. It is for the companies who are interested in investing in Brazil. If you need to go to court in the United States, you have to hire an American attorney. This is why we have lots of connections that are very important.

We make most of those connections by making conferences and speaking on the road about those issues. Here in Brazil, we have about 50,000 cases regarding those issues, so it is a lot. We have more fraud cases here than there are in the United States. Some cases, also, we only have in Brazil. The first lawsuit to be read in a defense paper that aimed to identify the IP of a Twitter user came from Brazil. The first criminal conviction regarding the Ad-words services sponsored by Google came from Brazil as well. Despite some problems with laws, we have interesting cases here which attract attention from all over the world. This is a very good opportunity to hold conferences, to speak about what is going on in Brazil, and to cooperate with each other and become known to the world.

This is an absolutely exciting area to be in, not to mention that you are the pioneers in the market. What is your view on those cyber privacy issues in Brazil?

The Brazilian laws cover about 95% of the conducts in using technology. We have to make new legislation for the remaining 5% and to develop our own legislation in about 25%. That is one of our challenges. However, there is a very important question that I am trying hard to answer. How should we create and develop laws in this field considering that technology grows so fast that sometimes it is impossible to understand the risks. As everybody knows, the legal system always comes after the facts and is progressing very slowly. We need faster ways. We need to find specialized teams in the House of Representatives – judges, police officers, and attorneys. We need to understand legal matters, technical matters, etc. and we cannot do this alone. You have to be a specialist. You have to focus in a particular area to reach what you need to come up with the laws.