2024-08-30 22:26:10
The financial innovation environment is constantly changing, and fintechs are playing a central role in this change, revolutionizing the way people and businesses interact with money. Digital payment platforms, in particular, have become essential for enabling fast and secure transactions. However, this rapid technological evolution comes with significant legal and regulatory challenges, especially regarding the criminal liability of these companies in the event of facilitating illicit transactions. Definition of Fintechs by the Central Bank itself “Fintechs are companies that introduce innovations in financial markets through the intensive use of technology, with the potential to create new business models. They operate through online platforms and offer innovative digital services related to the sector.”
The expansion of fintechs and the growth of legal risk
The growth of fintechs, acting as financial intermediaries through payment platforms and money transfer services, places these companies in a crucial position in the flow of global economic transactions. This strategic position, although favoring the democratization of financial services, exposes fintechs to substantial risks, especially regarding the potential use of these platforms for illicit purposes, such as fraud and money laundering.
In the legal scenario, both in Brazil and internationally, there are strict provisions for the punishment of financial crimes. Fintechs, by playing the role of facilitators of transactions, can, even unintentionally, become vehicles for criminal activities. These institutions may be held criminally liable when they fail to implement and maintain effective mechanisms for controlling and preventing financial crimes, highlighting the importance of robust compliance.
Compliance challenges and criminal liability
The criminal liability of fintechs for illicit transactions carried out on their platforms is a topic of increasing relevance, as explained by specialist lawyer Karime Mesquita. She highlights that Lei nº 9,613/1998which deals with crimes of “laundering” or concealment of assets, rights and values, imposes on all financial institutions, including fintechs, the obligation to adopt effective mechanisms to prevent money laundering. These mechanisms include, among other measures, strict “Know Your Customer” (KYC) policies and a detailed analysis of suspicious transactions.
Karime Mesquita notes that “the speed at which fintechs grow and innovate often outpaces the ability of regulations to keep up with these changes. Platforms that do not adopt robust compliance practices risk being held criminally liable if their operations facilitate or conceal criminal transactions.”
Supervision and the role of regulatory authorities
Regulatory authorities have stepped up their oversight of fintechs, demanding greater transparency and the adoption of best governance and compliance practices. Failure to adequately monitor and neglect to report suspicious activity can result in severe sanctions, including significant fines and criminal liability for the managers of these platforms.
This scenario reinforces the importance of solid governance, capable of anticipating regulatory requirements and mitigating risks. Fintechs must be prepared to respond promptly to the demands of authorities, adopting a proactive stance in identifying and preventing illicit activities.
Future challenges and the need for continuous adaptation
The regulatory environment for fintechs is constantly changing, driven by advances in technology and the creation of new forms of digital transactions. As a result, the challenges related to criminal liability are also intensifying. Fintechs need to continually invest in cutting-edge technology and staff training to ensure that their operations comply with current laws and regulations.
Karime Mesquita concludes that, despite the constant evolution of fintechs, it is imperative that these companies invest in continuous technology and training to ensure that their operations are aligned with legal and regulatory requirements.
Increasing regulatory scrutiny and the need for robust compliance underscore the importance of a proactive approach to mitigating legal risks. Ultimately, protection from criminal liability will depend on fintechs’ ability to adapt quickly to changes in the regulatory environment and implement rigorous practices to monitor and prevent illicit activities.
About Karime de Souza Mesquita
Graduated in Law from PUC-SP, Master’s degree in Criminal Law, Human Rights and Public Security at the University of Salamanca – Spain, Postgraduate in Economic Criminal Law from the University of Coimbra/IBCCRIM, Postgraduate in Criminal Law and Criminal Procedure from the Faculdade Escola Paulista de Direito.
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