Did The Intercept commit a virtual crime by posting the messages provided by a hacker?
Since last Sunday, the newspaper company The Intercept has been publishing talks of Lava Jato’s prosecutors with former federal judge Sérgio Moro.
According to information circulating on social networks and on the internet, The Intercept would have released only 1% of the content obtained through the criminal action of a hacker.
In this perspective, many doubts arose this week with these episodes. Inquiries whether the hacker could respond criminally and whether The Intercept would be committing a crime by disclosing the information illegally obtained.
A hacker is an individual who is dedicated, with unusual intensity, to know and modify the most internal aspects of devices, programs and computer networks.
But the term hacker is popularly used to describe people who make modifications and manipulations not trivial or unauthorized in computer systems, that is, illegally.
In 2013, the penal code was amended by the “Carolina Dieckmann Act,” a reference to the TV Globo actress, which prompted discussion about the hardening of punishments to cyber crimes after 36 photos of her have leaked on the internet.
With the law, art. 154-A and 154-B, paragraph 1 of art. 266 and the sole paragraph of art. 298 of the Criminal Code.
Despite the changes, the typification of cyber crimes depends on the fulfillment of legal requirements, as an example, which protected legal right was harmed.
Therefore, in the case of the hacker who invaded the cell phone – according to information, of the prosecutor Dallagnol – and copied / stolen the messages of the Telegram, without a doubt, committed an illegal criminal.
The Intercept is an online newspaper launched in February 2014 by First Look Media. The news organization was created and funded by Pierre Omidyar, founder of eBay, and its editors are Glenn Greenwald, a US lawyer, constitutional law expert and former journalist for The Guardian; Laura Poitras, filmmaker, documentary filmmaker and writer, and Jeremy Scahill, an investigative investigative journalist specializing in national security affairs. The Brazilian version began its activities in August 2016.
After all, did The Intercept, when publishing hacked content, infringe criminal law?
In the first place, we start with the constitutional precept provided for in Article 220 of CF / 88:
Art. 220. The manifestation of thought, creation, expression and information in any form, process or vehicle shall not be subject to any restrictions, in compliance with the provisions of this Constitution.
The STF, in dealing with the topic, understands that art. 220 of the Constitution radicalizes and extends the regime of full freedom of the press, because it speaks: a) that the aforementioned personality rights (freedom of thought, creation, expression and information) are safe from any restriction in their exercise, whatever is the physical or technological support of its placement; (b) that that exercise is not subject to provisions other than her own.
Therefore, press law is an activity of public interest of national interest. Any censorship measure is illegal.
Freedom of expression is a fundamental concept in modern democracies in which censorship has no moral support.
Thus, in publishing the talks, The Intercept did not commit any crime, due to constitutional protection of freedom of the press and freedom of expression.
If The Intercept had hired a hacker to commit the crime, he would certainly be liable for the crime.