Espionagem e a revelação de segredos estatais: uma análise do artigo 359-K, § 4º, do Código Penal

The amendment by Law nº 14.197/2021, which introduced art. 359-K, § 4º, in the Brazilian Penal Code, provides a cause for exclusion of criminal liability in case of communication, delivery or publication of information and documents classified as secret, protecting whistleblowers against convictions of espionage, whenever the purpose of disclosure is to expose the practice of crime or violation of human rights. The present article intends to address, at first, whether the Brazilian legislator, contrary to the world trend in this matter, had acted well when inserting in the legal system a provision of this nature. Next, the structure chosen for the criminal protection of whistleblowers against criminal sanctions will be critically analyzed. Finally, in face of the problems raised by the wording of § 4º of art. 359-K of the Brazilian Penal Code, some considerations will be made as lege ferenda, in an attempt to overcome them.