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The advancement of digital technologies has completely revolutionized our way of living, working and interacting. Social networks, artificial intelligence, cryptocurrencies and digital life transformed human relationships, generating new challenges for the Law. Given this dynamic and complex scenario, it has become urgent to rethink the Brazilian civil regulatory framework to meet the demands of the 21st century.
Recently, a Committee of Jurists presented a bold preliminary draft reform of the Civil Code, which includes, for the first time, a specific book dedicated to Digital Law. The stated intention is to modernise and adapt the legal system to the new technological realities. However, this project, which seemed promising, quickly became the target of strong criticism by renowned experts.
One of the most prominent voices is that of jurist Judith Martins-Costa, who classifies the proposal as a clear example of "legal populism". According to her, the text presents superficial and inaccurate solutions to extremely complex issues, creating a scenario of legal insecurity and difficult application.
One of the central points of the debate involves the general principles underpinning the proposal. Fundamental principles such as human dignity, privacy, autonomy and protection of personal data should guide digital legislation. However, experts warn that the current text of the preliminary project brings vague and superficial definitions, which are not able to face the real challenges related to dignity and privacy in the virtual environment.
In addition, the issue of digital identity and personality protection in virtual space emerges as a crucial and controversial point. Digital society faces unprecedented situations, such as profile cloning, undue exposure and damage to digital reputation. The main criticism is that the project does not provide robust or clear solutions to effectively protect individuals from these threats.
Another relevant theme is the digital heritage and heritage, an increasingly present reality in people's daily lives. Digital assets such as social media accounts, streaming platforms and cryptocurrency represent significant economic and affective values. However, experts indicate that the current proposal lacks clear and efficient criteria to regulate the transfer of these goods after the death of users, leaving uncertainties about the future of this heritage.
Civil liability for digital damage, especially those caused by algorithms and artificial intelligence, also generates intense debates. Although the preliminary project recognizes these challenges, critics point out a lack of precision and clarity in the assignment of legal responsibilities in view of the damage caused by automated decisions.
The aspect of personal data protection and digital consent appears as a key point of articulation between the new Book and existing regulations, such as the Brazilian LGPD and the European GDPR. However, there is doubt as to whether the pre-project can progress in a coherent and effective manner, or whether it repeats existing approaches without adding additional legal certainty.
Most of the proposals of the Digital Law Book lack effective normative content, either by prolixity or reticence. Many devices simply state that rules already in the Civil Code apply "also" to the digital environment, creating unnecessary and potentially dangerous redundancies from an interpretive point of view.
For example, the preliminary draft proposes to amend Article 1,634 to establish that parents should "fiscalize the activities of children in the digital environment", as if this obligation were no longer implicit in family power. Similarly, debit discharge arrangements are modified to explicitly include the possibility of "digital" discharge, something that would already be possible by the systematic interpretation of planning.
