Brazil’s Recent Ratification of the Budapest Convention on Cybercrime

Bruno Calabrich (Public Prosecutor (Brazil) | PhD candidate at the University of Brasília (UnB).)

Cybercrime is a growing issue in today’s digital age, with criminals taking advantage of the interconnectedness and dependency on technology for personal and organizational activities. Cybercrime is not a new problem and has been addressed by the Council of Europe with the Budapest Convention on Cybercrime in 2001, which entered into force in 2004 after ratification by five Council member countries. This international treaty was conceived to serve as a framework for nations to coordinate and cooperate in the investigation, prosecution, and prevention of cybercrime. As highlighted in its preamble, the Convention recognizes the crucial importance of establishing common criminal law and criminal procedural law in order to facilitate “detection, investigation and prosecution at both the domestic and international levels and by providing arrangements for fast and reliable international co-operation”.[1] Chang and Grabosky point out that “the Budapest Convention is the first and only international convention to encourage harmonization of cyber laws and regulations, and to build cooperation among nations in controlling cybercrime”.[2] In its core fundamentals, Member States commit to work together to provide quick and effective responses to cyber-attacks, exchange information on emerging threat trends and assist each other in investigating cross-border criminal activities.

Brazil, as a leading South American country in terms of technological advances and digital economy, has also recognised the importance of addressing these issues. Indeed, after a long period in which little importance was given to the topic (particularly when compared to the European tradition), Brazilian legislation has shown significant advances in several matters related to digital law, cybercrime and personal data protection in recent years. Its main normative milestones are Federal Statute No. 12.737/2012,[3] which “establishes the criminal typification of cybercrimes” – also known as the “Carolina Dieckman Act” –, Federal Statute No. 12.965/2014[4] – the Brazilian Internet Civil Rights Framework –, and Federal Statute No. 13.709/2018[5] – the Brazilian General Data Protection Act (“Lei Geral de Proteção de Dados Pessoais”, or LGPD). In Brazilian Courts, there have also been important decisions, such as the ruling by the Federal Supreme Court (STF) on ADC (“Ação Direta de Constitucionalidade”, a declaratory lawsuit of constitutionality of federal laws or normative acts) no. 51,[6] in February 2023, which confirmed the validity of court orders issued in the interest of criminal investigations for technology companies running internet applications in Brazil, even when the requested data is stored on servers located abroad. Prior to that, in May 2020, the STF, in the judgment of ADI (“Ação Direta de Inconstitucionalidade”, a direct lawsuit of unconstitutionality of federal or state laws or normative acts), no. 6387 MC-Ref/DF, recognized for the first time the protection of personal data as an autonomous fundamental right, not explicitly stated, but inferred from an integrated reading of several provisions of the Brazilian Constitution.[7] This decision prepared the grounds for the enactment of Constitutional Amendment no. 115/22, in February 2022, which expressly included the protection of personal data in the wording of the Constitution among the fundamental rights and guarantees.[8]

Continue reading “Brazil’s Recent Ratification of the Budapest Convention on Cybercrime”

Lula da Silva is President of Brazil once again: are we closing a cycle of lawfare?

By Guilherme Torrentes (Master in Human Rights from the University of Minho)

On January 1, 2023, Luiz Inácio Lula da Silva was sworn in as President of Brazil for the third time, after one of the fiercest electoral disputes since the re-democratization of the country (which occurred in 1985), in which Lula da Silva defeated Jair Bolsonaro. It is perhaps the end of a cycle of “lawfare” – a term that can be defined as the strategic use of law for the purpose of delegitimizing, harming, or annihilating an enemy[1] – that is, the perverse use of legal rules and procedures for the purpose of political persecution. This cycle of lawfare was initiated in a tentative way by what became known as “Mensalão” (a “mega” or “maxi” judicial process that culminated in the conviction of several political members of Lula’s first government for corruption) and worsened with the impeachment process of President Dilma Roussef and “Operação Lava Jato” (another “mega” judicial process that culminated in the illegal imprisonment of Lula for 580 days).

This cycle of lawfare has jeopardized the continuity of the democratic rule of law, as the Brazilian judiciary and criminal process have been instrumentalized by the exception and subjectivity undesirable to its performance, in order to achieve the desired political ends. It is worth noting that in 2018, the Brazilian State failed to comply with a recommendation of the United Nations (UN) Human Rights Committee to guarantee Lula the right to run for the presidential elections of that year, invoking its domestic laws to not apply Article 25 of the International Covenant on Civil and Political Rights (which guarantees every citizen the right and the opportunity, without unreasonable restrictions, to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors).[2]

Continue reading “Lula da Silva is President of Brazil once again: are we closing a cycle of lawfare?”

The securitization of health: on the protests against the Chinese “zero-COVID” strategy

By Rafaela Garcia Guimarães (Master in Human Rights from the School of Law of the University of Minho)

The approach to health as a security issue is supported by the theory of securitization developed by researchers from the Copenhagen School, according to which threats to security are socially constructed, through a speech act – whether oral, written, through images and other means of communication. Discourse acquires a fundamental role in the securitization process, as it is through the act of speech that the securitizing agent (usually an authority) exposes a demand to the public as a threat to its security – a threat that may or may not be real[1].

Health securitization occurs when a disease is presented to the public as an “existential threat”. This can happen with the onset of a disease with little scientific knowledge, no easily identifiable treatment or cure, high mortality or transmissibility, and especially when they are associated with a visceral fear of pain or suffering.

Securitization results in the adoption of exceptional measures, mainly due to their urgent nature, which may lead to containment, surveillance and coercion measures. Moreover, the policy of exception is presented to society as the only means of survival – and fear makes restrictive (and even suspensive) measures for the exercise of fundamental rights more easily accepted.

Continue reading “The securitization of health: on the protests against the Chinese “zero-COVID” strategy”

A new strategy for EU law enforcement

By Pedro Pereira (Master’s student in European Union Law at the School of Law of the University of Minho)

The European Commission is regarded as the “Guardian of the Treaties” in the Treaty on the European Union (TEU), and according to its most recent Communication last October 13, it plans to ensure its own role with both a helping hand and watchful eye, all while honouring democratic transparency and (especially) EU law.

The Communication “Enforcing EU law for a Europe that delivers”[1] draws on the fact that the EU is an established community of both law and values. It reminds us that the EU’s best asset is its ability to create a homogenous background for its citizens and businesses alike. EU law lays the foundation and groundwork for a well-functioning internal market, for a more digital and greener Europe, ensures and promotes European values, provides for effective judicial cooperation, security and ultimately succeeds in showing the world the bastion of justice, democracy, and respect for fundamental rights. And bearing the responsibility as the Guardian of the Treaties and EU law, in its own words: “The Commission is committed to stepping up its work to promote and uphold people’s rights, fundamental freedoms and the rule of law.”

Continue reading A new strategy for EU law enforcement

EU Carbon Border Tax Mechanism: a potential Boon or Bane for India

By Aaiysha Topiwala (third year undergraduate student at Gujarat National Law University - India) 

As the world grapples with the rising frequency of catastrophic climate effects, all the nations have realized the urgent need for global efforts to tackle the mammoth challenge of climate change. In this scenario, the European Union (EU) has emerged as an environmental leader at the global level. The environmental laws and policies adopted by the EU are considered one of the most ambitious policies in the world. The recent policy brought out by the EU last year is yet another proof of its determination to remain at the forefront of tackling climate change. The European Parliament, in July 2021, announced that it would levy a carbon border tax on all imported carbon products. After almost a year of the announcement of this policy and with less than half a year left for the transition period set to begin in 2023, it becomes essential to revisit this policy and determine its effect on India along with the possible solutions.

Continue reading “EU Carbon Border Tax Mechanism: a potential Boon or Bane for India”

The instrumentalization of Human Rights in electoral processes as a marketing tool for the dominance of political elites

Sérgio Salazar  (Master's Student in Human Rights at the School of Law of the University of Minho)

States organize themselves by the political, social, and economical domination of their elites. Whether they are democratic, authoritarian, totalitarian, etc. In other words, all individuals are ruled by an elite.[1] For the effects of this article, our focus will be on political elites.

By political elites it is to be understood, individuals that, by their own merit, intellect, economic or social advantages or privilege, achieved or occupy positions of high importance on the political stage. And, due to that, hold a disproportional amount of power over the political direction of the State.[2]  

Continue reading “The instrumentalization of Human Rights in electoral processes as a marketing tool for the dominance of political elites”

European Union Taxonomy: what is it and how will it work?

Nataly Machado (Master’s student in EU Law at UMinho). 

Taxonomy: where does this word come from? “The term is derived from the Greek taxis (“arrangement”) and nomos (“law”). Taxonomy is, therefore, the methodology and principles of systematic botany and zoology and sets up arrangements of the kinds of plants and animals in hierarchies of superior and subordinate groups”[1] In accordance to Maria da Gória F.P.D. Garcia:“it is the verification by scientists emerging from the community and from various quarters, sometimes against each other, that warns of the need to base political decisions on scientific knowledge if the very continuity of life in society is to be preserved.”[2] (free translation)

Let us make a brief Taxonomy’s history background. The first records of biological classification, which gave rise to taxonomy, the area of biology responsible for identifying, naming and classifying living beings, take us back to the Greek philosopher Aristotle (384-322 BC). However, it was in the 18th century that the botanist Carolus Linnaeus developed the binomial nomenclature system, written in Latin, which is still used today. A well-known example that identifies us as a species: Homo sapiens.

Continue reading “European Union Taxonomy: what is it and how will it work?”

The GDPR may no longer be a paper tiger

Tiago Sérgio Cabral (Managing Editor). 

1. It is a known fact that the General Data Protection Regulation (GDPR) has suffered from an enforcement problem. The theoretical administrative fines of up to €20 000 000, or in the case of an undertaking, up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher, that appear impressive on paper largely failed to properly materialize in the first few years of application of the “new” data protection framework.

2. Fines under the GDPR finally overcame the €1 billion threshold in 2021, a sevenfold increase from 2021. In fact, fines under the GDPR have been steadily growing since 2018. Of course, one should not forget that a significant percentage of the total amount of fines levied in 2021 is comprised by the €746 million fine levied by Luxembourg Data Protection Supervisory Authority (DPA) against Amazon and the €225 million fine levied by the Irish DPA against Whatsapp. In addition, the total amount of the fines still pales in comparison with other areas, such as competition law.

Continue reading “The GDPR may no longer be a paper tiger”

Blockchain: a small introduction and a legal perspective

Catarina Ferreira (Master’s student in European Union Law at the School of Law of the University of Minho)

1. The blockchain technology

Blockchain is commonly known as the underlying technology used in Bitcoin. This “new” and revolutionary technology, whose roots are ancient, has been introduced (as we know it) in 2008 when Satoshi Nakamoto released the Bitcoins’ white paper. In the white paper, Nakamoto presented a decentralized payment model based on cryptography and using blockchain technology. This idea would allow a move forward from the traditional model, based on trust and relying on an impartial third, and achieving currency decentralization (being possible to perform direct transactions between two parts).

It cannot be denied that blockchain is a new paradigm, a new information technology with tiered technical levels and multiple applications for any form of asset[1], going beyond the financial sector. Nowadays, blockchain’s impacts are being compared to the ones that followed the development of the Internet. So, understanding what is blockchain and the ideology behind it, is a requirement for those who want to apply the law without damaging the technology.

Before clarifying what blockchain is, it should be noticed that since Bitcoin’s blockchain many others have arisen. Nonetheless, there are commonalities between all blockchains, and in this work, we’ll be discussing all those commonalities and not a specific blockchain. 

Continue reading “Blockchain: a small introduction and a legal perspective”

Work-life balance measures in the EU and the impact of Covid-19 on its progress

Maria Inês Costa (Master’s student in Human Rights, UMinho)

The implementation of Directive 2019/1158 of June 20, 2019, of the European Parliament and the Council on work-life balance for parents and carers[1], came about two years after the publication (in 2017) of a proposal by the European Commission (EC). In 2008, a directive on maternity leave was proposed, which provided for more time on leave and more rights for mothers; however, in 2015, the Commission withdrew the proposal, basing its decision on the persistent difficulty of reaching an agreement among the co-legislators, while ensuring that it would continue its efforts to propose a broader initiative.[2] Thus, the 2017 proposal was announced as part of a set of measures to be implemented that, based on the policies and protection of the EU acquis and existing European legislation, aimed to improve existing rights, with a focus on equal treatment and gender equality. Hence, the specific objectives to be pursued are mentioned in this proposal: to improve access to leave and flexible working arrangements, and to increase the take-up of leave by men.[3]

Continue reading “Work-life balance measures in the EU and the impact of Covid-19 on its progress”