Digital influencers, gambling, and money laundering: A defense perspective.

Many people have been questioning the criminal liability of digital influencers in promoting and publicizing gambling, especially after so many famous influencers have been featured in police reports.

In Brazil, gambling is prohibited by Decree-Law No. 3.688 of 1941, known as the Law of Criminal Offenses, as highlighted by brothers Emanuel Barbosa de Lima and Henrique Barbosa de Lima, criminal lawyers of Barbosa Lima Advocacia. The legislation, they emphasize, establishes that operating gambling games without proper state authorization is considered a criminal offense.

Furthermore, the Money Laundering Law (Law No. 9.613/1998) is widely (and indiscriminately) applied in cases related to gambling.

Digital influencers, gambling, and money laundering.

Currently, digital influencers flaunt movie-worthy lives on social media, with luxury cars, beachfront mansions, and international trips. To us, it's very clear that this is part of their strategy to provide security to their followers. However, with the increasing focus of police investigations on digital influencers, great care must be taken to avoid becoming a target.

The digital influencer, who promotes a betting site, ends up being the target of an investigation as the actual author of the encouragement of gambling, when in reality he shouldn't be. But even if he were, the big problem isn't the fact that the digital influencer might eventually be held responsible for gambling, because gambling is a minor offense with a negligible penalty, and this offense alone wouldn't be enough to put an influencer in prison.

But the big problem is when this investigation is pushed to shed light on the influencer's financial life, and it is at this point that other crimes may emerge in the investigation. For example, tax evasion, currency evasion, and, especially, money laundering, explains Henrique Lima, a criminal lawyer.

For some time, money laundering could only be charged against someone who had committed certain specific crimes, such as drug trafficking, for example. However, currently, the law allows the crime of money laundering to be charged against a person who commits any criminal offense, including a minor offense such as gambling. And that's where things start to get serious, emphasizes Dr. Emanuel Lima.

The current trend is to accuse digital influencers of money laundering. However, in some (or many) cases, investigations end up misinterpreting the crime of money laundering, especially in relation to betting platforms, regulated by Laws 13.756/2018 and 14.790/2023.

Money laundering, as defined by Law 9.613/98, occurs when illegally obtained funds are concealed or disguised through fraudulent procedures that make them appear legitimate. In other words, it is essential that the illicit origin of the funds be transformed or concealed.

However, an influencer who receives money from a contract with a betting platform to promote games, even if the money were considered illicit (gambling), would not, in itself, be guilty of money laundering if there were no concealment or dissimulation of the funds.

In other words, money laundering depends on a prior criminal offense (in this case, gambling), but merely profiting economically from illicit funds, without fraudulent actions, does not constitute the crime of money laundering. Thus, activities such as influencer advertising carried out regularly do not automatically imply this type of crime. Furthermore, the Superior Court of Justice (STJ) itself has already ruled that the mere economic benefit from the proceeds of crime does not constitute money laundering.

The fact is that influencers who lack financial resources, legal structure, or the backing to support the lifestyle they flaunt on social media will, sooner or later, be involved in criminal investigations, either due to a lack of knowledge and specialized advice, or due to excessive accusations of crimes by law enforcement agencies.

Regulation is necessary, say Emanuel Barbosa de Lima and Henrique Barbosa de Lima.

Finally, and most importantly, influencers should seek specialized help to achieve a healthy financial structure as well as a formal legal framework to securely receive the fruits of their labor.

The current scenario demands clearer regulation of the activities of digital influencers, especially regarding the promotion of gambling. The absence of specific legislation to regulate these practices can result in broad interpretation, generating legal uncertainty for both influencers and their followers. The discussion on the legalization and regulation of gambling in Brazil is ongoing, with proposals that could impact this dynamic.

(*) Emanuel Barbosa de Lima and Henrique Barbosa de Lima are lawyers at Barbosa Lima Advocacia (Photo: PressWorks/Publicity) The article above was published in VALOR.