The Challenges of Codifying Law in the Technological Era

A Senate hearing on Bill No. 4/2025 reveals disagreements over the role of Digital Law, the limits of neurorights, and the proposal to create “digital entities” within Brazil’s new Civil Code.

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The reform of the Brazilian Civil Code, proposed by Bill No. 4/2025, opens one of the most significant debates in contemporary legal theory: how to reconcile the permanence of codified law with the mutability of the digital age. The creation of an autonomous Book on Digital Law, currently under discussion in the Temporary Commission for the Updating of the Civil Code of the Federal Senate, places at the center of the legal agenda the tension between technological innovation and dogmatic coherence.

The public hearing convened by the Commission brought together leading figures and scholars in civil law and technology regulation highlighting both the interdisciplinary scope and institutional relevance of the subject. The proposed reform seeks to incorporate into the Civil Code new principles and legal categories addressing topics such as civil liability on digital platforms, electronic contracts, artificial intelligence, neurorights, and digital assets, marking an unprecedented effort to codify technological life.

This article examines the main discussions that emerged during the hearing, focusing on the convergences and tensions among the jurists who participated in the debate. It aims to assess whether the proposed Book on Digital Law represents a coherent advancement of the civil-law tradition or a turning point that threatens to fragment the system.

DIGITAL LAW IN THE CIVIL CODE: BETWEEN INNOVATION AND TRADITION

Scholars emphasized that Brazil faces a historic opportunity to modernize its Civil Code and position itself at the forefront of digital rights regulation worldwide. Both pointed out that the current Code, drafted more than fifty years ago, no longer reflects contemporary social and technological realities, making an update necessary to align the legal framework with the new dynamics of the digital world.

According to Porto, the bill introduces a dedicated Book on Digital Law divided into ten chapters, structured around principles and concepts aimed at legal certainty and the protection of human dignity. The content ranges from general provisions and definitions of digital platforms to topics such as digital assets, artificial intelligence, electronic contracts, digital signatures, and e-notarization. She also identified a significant omission — the lack of specific provisions addressing the protection of the elderly in digital environments.

Ricardo Campos, a member of the Commission and professor at the University of Frankfurt, added that the new Book seeks to integrate harmoniously into the rational system of the Civil Code, without supplanting or competing with existing legislation. In his view, Digital Law is transversal, permeating all other parts of the Code, although certain matters — such as digital signatures and content de-indexation — require autonomous treatment.

Campos further noted that every codification is a product of its historical context: the current Code emerged in the 1970s, a reality far removed from today’s. The proposed reform, therefore, aims to restore economic security and legal predictability to digital relations, benefiting both market actors and users. He identified three key pillars of the reform: (i) neurorights, focused on protecting mental integrity and individual self-determination in the face of emerging technologies; (ii) digital signatures, aligning Brazilian law more closely with the European model; and (iii) credit scoring, promoting transparency and fairness in automated credit-evaluation systems.

STRUCTURAL CRITIQUES: DIGITAL EXCEPTIONALISM AND NORMATIVE REDUNDANCY

Scholar Carlos Affonso de Souza (University of the State of Rio de Janeiro) offered substantial critiques of the Digital Civil Law Book, organizing his remarks into three parts: (i) the role of the digital within the Civil Code; (ii) dialogues and conflicts with other statutes; and (iii) drafting and conceptual issues requiring refinement.

First, he questioned the very role that Digital Law should play in the modernization of the Code. The choice to create a stand-alone book risk reinforcing a form of digital exceptionalism — the notion that new technologies are so unique that they require special treatment outside the general logic and principles of Civil Law. Such a move, he argued, may rupture the unifying structure of the Code, whose vocation is to offer general and enduring norms capable of withstanding social and technological change.

An illustrative example, Affonso observed, is Article 2027-CD, which explicitly references the now-defunct application Skype, and Article 2027-H, which defines quantitative thresholds (such as user numbers) for classifying large-scale platforms. These provisions, he argued, resemble regulatory measures rather than civil-law norms, raising concerns about their durability within a code designed to last for decades.

In discussing conflicts with existing frameworks, he highlighted overlaps with the General Data Protection Law (LGPD) and the Brazilian Internet Bill of Rights (Marco Civil da Internet). Regarding the LGPD, Affonso noted that the bill duplicates or rewrites already consolidated provisions, including principles and data-subject rights, creating potential contradictions. Such redundancies could undermine systemic coherence and invite conflicting interpretations among norms of equal hierarchy.

More critically, the proposal to revoke Article 19 of the Internet Bill of Rights — recently upheld as constitutional by the Supreme Federal Court — disrupts a settled rule: platform providers are only civilly liable for user content if they fail to comply with a court order for its removal. By overturning this principle, the bill reverses the jurisprudential logic of liability, generating uncertainty about the boundaries of freedom of expression and content moderation. Affonso also warned that the bill’s requirement for all digital service providers to implement effective age-verification systems could clash with the newly enacted Digital Child and Adolescent Statute (Law No. 15.211/2025), which defines different obligations and responsible entities.

Finally, he pointed to drafting inconsistencies — such as non-legal terminology (“protagonist”) and the unclear distinction between “acts” and “activities” — as well as the introduction of distinctions foreign to existing law, like separating personal from patrimonial data, a division absent from the LGPD. Substantively, he questioned the extension of personality rights to legal persons, the reintroduction of a “right to be forgotten”, and the right to de-indexation in an era when search itself is evolving through artificial intelligence, potentially rendering such provisions obsolete.

He further noted that Article 2027-N, which establishes strict liability for providers and users, breaks with the civil-law tradition by eliminating fault-based liability, and that the text misuses terminology by treating copyright and intellectual property as separate categories — when in fact the former is a species of the latter, and the proper reference would likely be to industrial property.

NEURORIGHTS AND THE NEW DIGITAL HUMANISM

Article 2027-O incorporates the doctrine of neurorights, proposed by neuroscientist Rafael Yuste, encompassing five fundamental rights conceived as extensions or reinterpretations of established human rights in light of neurotechnological advances:

1. Mental privacy — protection against the capture, decoding, or unauthorized use of neural data, ensuring the inviolability of thoughts, emotions, and impulses.
2. Mental identity — preservation of psychological continuity and personal identity, preventing technological interventions from artificially altering consciousness or personality.
3. Cognitive liberty — safeguarding individual control over one’s mental processes and decisions, shielding against coercion or manipulation.
4. Mental integrity — protection from technologies that could harm or manipulate neural functions, emotions, or memories.
5. Equitable access to cognitive enhancement — ensuring equality and non-discrimination in access to neurotechnological tools, avoiding new forms of social stratification.

Despite their innovative and emancipatory appeal, neurorights raise conceptual and normative tensions that challenge their legal implementation. Concepts such as “cognitive liberty” and “mental integrity” often overlap or diverge in their ethical and legal foundations. Recent scholarship has therefore proposed a minimalist conception of neurorights, limited to three core categories — mental privacy, mental integrity, and cognitive liberty — as a more coherent regulatory framework.

Moreover, neurorights may be understood as extensions of already-recognized rights such as privacy, freedom of thought, psychic integrity, and data protection. The central question is whether sufficient normative justification exists to treat them as autonomous rights, rather than as developments of established personality and privacy rights.

DIGITAL ENTITIES AND THE FALLACY OF ELECTRONIC PERSONALITY

Finally, Article 2027-S introduces the concept of “digital entities”, alongside natural and legal persons. This raises a fundamental question: should legal relations exist between people, or between people and machines? Robots, by their very nature, are instruments of interaction among users, companies, and governments, not autonomous legal subjects.

The idea of granting electronic personality (e-personality) to artificial-intelligence systems is not new. It was debated within the European Union beginning in 2016, when the European Parliament’s Committee on Legal Affairs (JURI) issued its report Civil Law Rules on Robotics, proposing a special legal category for highly autonomous robots. The proposal, however, faced strong academic and institutional opposition and was formally rejected in 2017.

Critics argued that attributing personality to machines was ontologically incompatible with the notion of personhood: while human beings possess consciousness, dignity, and moral agency, machines merely execute algorithmic instructions. Likewise, the Helsinki Declaration on Artificial Intelligence and the Rule of Law (2019) reaffirmed that AI must remain an instrument, not a subject of law, warning that otherwise it would “subvert the anthropocentric foundations of the Western legal system.”

By revisiting the notion of digital entities, the Brazilian proposal appears to revive a debate already settled in Europe, without sufficient conceptual justification. Creating a third category of legal subject — between the natural and the juridical — would undermine the internal coherence of civil law, shifting the axis of liability and weakening the principle of autonomy of will, the cornerstone of private-law theory.

CONCLUSION

The inclusion of a Book on Digital Law in Bill No. 4/2025 represents one of the most ambitious reforms of Brazil’s Civil Code since its enactment in 2002. Yet it also reveals the inherent difficulty of translating technological language into the conceptual grammar of civil law — balancing innovation with coherence and durability.

The debates within the Senate Commission expose a field in tension: on one side, enthusiasm for bringing Brazil to the forefront of digital regulation and reaffirming principles of dignity, security, and accountability; on the other, the prudence of scholars warning against a digital exceptionalism that could fragment private law and erode its conceptual unity.

Ultimately, the process must aim for integration, not rupture. The challenge for legislators is not merely to update the Civil Code for the technological age, but to reaffirm its foundational values amid digital transformation. Codifying the digital is not simply legislating about technology — it is deciding, consciously, what kind of humanity the law seeks to protect.