Digital Law and Its Influence on Digital Marketing

According to an article by Dr. Nelson Alexander Schepis Montini, published in Propmark, a digital magazine specializing in advertising and marketing, Dr. Nelson Montini discusses the subject.

The article can be consulted at the website https://propmark.com.br/opiniao/direito-digital-e-sua-influencia-ao-marketing-digital/

As we are well aware, marketing plays a crucial role in consumer decision-making. This is reflected in Statista's research, which identifies that 43% of the Brazilian population has made at least one purchase influenced by "influencers."

In this percentage, Brazil leads the global ranking of an "influenceable" population, especially since the Brazilian population consumes social media content more than television programs by a wide margin.

This highlights the importance for professionals to pay attention to certain practices to avoid problems.

Thus, we see that social media is more present in our lives, leading to the need for knowledge of Digital Law.

Professionals increasingly need to be trained, not only in their professional field but also, and especially, in new laws and social aspects.

We are increasingly online, leaving the offline behind, meaning that media needs to be more in the digital world than in the physical one. However, this raises a question: what is digital law? How is this topic currently being guided?

Like all branches of law, when referring to digital law, we are discussing a set of rules and legal norms that govern the subject.

Digital law, in short, is nothing more than law in the digital world, i.e., the set of laws and regulations that govern the digital, immaterial world.

Another question we must ask is, if digital law exists, what is the law number it refers to? Here, dear reader, we enter a legal vacuum.

Currently, there is no single law or codex that governs digital law. In Brazil, we have a set of laws that must be studied and used.

We have the Penal Code for crimes committed online, the Civil Code for civil conduct in both the material and virtual worlds, the Consumer Defense Code, the Civil Rights Framework for the Internet, and the General Data Protection Law, among others... remember, this list is merely illustrative.

As we can see, digital law is a complex topic, but for the reader of this article, who seeks information on digital marketing, it should be known that the previously presented list is one that will require the professional's knowledge.

For this reason, a brief overview of the most relevant topics for the digital marketing professional in their internet professional care will be given. We will not address customer relations here but rather, superficially, the topics of concern to the professional.

But remember, dear reader, always study the field of action of the project to be carried out to avoid future problems.

Internet Civil Framework and Civil Code

The Internet Civil Framework, Law 12965/14, establishes principles, guarantees, rights, and duties for the use of the Internet in Brazil, always being analyzed and interpreted together with the Civil Code - to complement the law's understanding.

This law, for the marketing professional, ensures their freedom of expression in the virtual world (unnecessary in our view, as this theme already exists in the Civil Code), as well as guarantees their privacy in this "second life."

The Civil Code is used to legally ensure other guarantees and duties, which will be addressed later.

In our view, this is the only point that deserves a superficial observation.

Civil Liability

The modern liberal professional is a service provider whose responsibility evolves over time due to the activity performed.

The marketing professional, whether digital or not, must pay attention to their responsibilities.

Here we are not talking about contracts with clients, but that the professional can be sued by their client if their service causes any kind of damage.

Therefore, the professional must always pay attention to the social peculiarities of their approaches, as well as the correct vernaculars and the use of appropriate jargon.

That is, before making a marketing publication public, it should be analyzed whether the action can generate some type of offense or subliminal understanding.

Peculiarities, such as digital marketing for the use of professional categories, also deserve observation, such as, for example, marketing actions to lawyers, which have great peculiarities due to the Professional Ethics Code.

In our experience, we have had colleagues and law firms being called out by the ethics tribunal, for example, for poor marketing attitudes, which resulted in losses for both professionals.

General Data Protection Law

This is practically a point of strong necessity of knowledge for the marketing professional. First, let's know a little, very superficially, about the law.

In our understanding of this legal set, the enactment of this law is an expansion of the understandings of the Federal Constitution and the Civil Code, aiming to protect fundamental freedoms and privacy of personal data, i.e., it is a compilation and deepening.

The law has determined a significant fine that can be applied, being the main knowledge necessity for the marketing professional, after all, the applicable fine is 2% of the turnover, with the fine limit being R$ 50 million per infraction. This fine can literally end a business activity, whether of the professional or their client.

We can summarize and affirm that the LGPD aims to protect personal data, where the need arises for the marketing professional to adapt to these data and collections. We are not talking about a simple "accept" button for data sharing and cookies. It goes much further.

Therefore, as we can see, it is up to the professional to make proper use of tools to collect only the data that is really necessary, as well as to be collected in a consented manner.

Still, dear reader, this database also needs to have protection to prevent data leakage.

It is essential for companies and marketing professionals to have an adequate plan in place regarding the LGPD to always have a preventive to repressive roadmap.

Unfortunately, as legal practitioners, many clients come to us seeking a solution for a problem that has already occurred, being a much harder work to solve than when there is at least minimal legal compliance.

Professional Ethical Responsibility

The professional, above all, must always pay attention to the dictates of the ABEMD (Brazilian Association of Data Marketing) ethics code.

This ethics code guides the professional in what they can or cannot do concerning the marketing activities to be performed and the use of vernaculars.

Currently, in a very simplistic way, the Professional Ethics Code already reflects the LGPD intrinsically in its texts.

Therefore, our professional opinion, taking into account the law, its penalties, realities, and our field experience, we can affirm that for the marketing professional, in performing their functions, it is always interesting to have a legal planning related to data protection, as well as, always keep in mind the responsibilities, i.e., what can happen to the professional and their client if a marketing plan is poorly executed, potentially causing significant financial losses to the professional and/or the client, not to mention that there may still be ethical order sanctions.

Much better is good prevention than a late repression.