Aline Iacovelo: Crimes against honor in the digital field

In an era where everything is digital and people think they can say whatever they want without fear of retribution, it’s important to make it clear that not everything said is an opinion. It can often be a crime.

We, legal experts, know that there are three types of crimes against honor, which are worth remembering: defamation, insult and slander.

At this point, it is interesting to compare the typification of each of them, according to the Brazilian Penal Code:

Defamation
“Article 138 – Defaming someone, falsely attributing to him a fact that is marked as a criminal offense
Punishment – imprisonment from six months to two years, and a fine.
§1 – The same penalty applies to anyone who, knowing that the attribution is false, disseminates or discloses it.”

Slander
“Article 139 – Defaming someone by attributing a fact that insults his reputation:
Punishment – detention, from three months to one year and a fine”.

Injury
“Article 140 – Injuring someone, insulting their dignity or decency:
Punishment – detention from one to six months or a fine”.

It happens, however, that the so-called the “ordinary citizen” doesn’t really know how these crimes work and, in order to “gossip a little”, or make seemingly simple comments about others, they may comment on one (or all) of the crimes.

It is interesting to give a practical explanation of each of them:

Presenting the name and photo of a person as the perpetrator of a murder on the Internet, without any proof, is characterized as a criminal offense of defamation.

When, for example, an actress discloses details of her private life in a magazine, even if the fact narrated is true, its disclosure is a crime of defamation.

On the other hand, to call a person “thief”, “corrupt”, “aggressive” or “liar”, for example, is to commit an insult, since these qualities are contrary to what he believes he has and undermine self-esteem; decorum, on the other hand, refers to one’s physical and intellectual qualities. So it would be, for example, to call an individual a “whale”, “stupid blonde”, “four-eyed”, “fat” or “ugly”. All this personally offends the victim [1] and characterizes the crime.

It is also possible to commit two crimes together or even all three at the same time! For example: Accusing a person of aggression (injury), claiming that he attacked someone and was “persecuted” because of it (defamation), in a group of two or more people be careful with him (defamation).

In addition, there are aggravating factors for criminal acts, i.e. situations that can increase the penalty initially provided by the Law:

“Article 141. The penalties imposed in this chapter are increased by one-third if one of the following crimes is committed:
(…)
III – in the presence of several persons or through means that facilitate the spread of slander, defamation or injury.
IV – towards children, adolescents, persons over 60 years of age or persons with disabilities, except in the case referred to in paragraph 3 of Article 140 of this Act.
§2 If the crime is committed or discovered in any modality of social networks of the World Wide Web, the penalty is tripled.“.

And it is one of these aggravating factors that we intend to focus on. As provided for in paragraph 2 of Article 141: “If the crime is committed or discovered in any modality of the social networks of the world wide web, the triple penalty applies”.

Today, everything that is done is spread through Internet messaging applications, worldwide computer networks: WhatsApp, Telegram, Signal, among others, along with Facebook messenger and directly from Instagram. All of them are undoubtedly characterized as “social networks”. Therefore, each of the above-mentioned criminal acts, if committed in a conversation, even a private one, on social networks, the punishment will be increased by three times.

Another thing to mention is that claiming ignorance does not make the author innocent of the crime he committed, especially in crimes like the ones we deal with, which are always mentioned, especially in the media. Often in the wrong or wrong way, as when they explain slander with slander, etc.

Alleged ignorance, in these cases, can mitigate the punishment at most, according to Article 21 of the Criminal Code, but the author would have to prove, in full, that at the time of the commission of the criminal offense he did not have “awareness of the illegality of the fact, when in the given circumstances it was possible for him to have or achieve that awareness”. Which, namely, in the case of the mentioned crimes, is almost impossible to do.

Who in Brazil in 2022 doesn’t know that slander, libel and slander are crimes?

After this point, we are left to talk about the omission, which in many cases is also considered a crime and makes the omission a co-author of the crime.

According to the Criminal Code, in Article 13, Paragraph 2, omission is criminally relevant when the person who omitted should and could have acted to avoid the consequence, but does not do so. There are three situations foreseen in the code as a duty to act for those who: 1) have a legal obligation to care, protect or supervise; 2) otherwise assumed responsibility for preventing the outcome and 3) created the risk of the outcome with its previous behavior [2].

The question remains: “What did you miss is relevant in our criminal law? We have several possibilities in which the omission will have criminal consequences” [3].

And in cases where someone becomes aware of the practice of one of these crimes, and does not do anything to prevent the spread of this information, he leaves himself out and can then become a co-author of the crime.

In this day and age, when everything happens on social media, it spreads at the speed of light and, fortunately or unfortunately, once it’s done it’s hard to be “deleted” or forgotten, it’s good to think a lot more before acting or even missing out.

The damage caused by these crimes is not limited to harming another in a psychological sense, which in itself can lead to a claim for moral damages in the civil sphere (however, bearing in mind that psychological damage must be proven and compensation is not automatic), but can induce the perpetrator of defamation to respond to criminal proceedings.

Aline Iacovelo El Debs is a lawyer, with a post-graduate degree in civil law from FAAP and an MBA in business law from FGV.

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