Data Protection as a Fundamental Right

This Thursday, 10/2, was a day of great relevance for Brazil with the promulgation of Constitutional Amendment 115/2022, which originates from the Proposed Amendment to the Constitution (PEC) 17/19, approved by the Chamber of Deputies and the Senate last year. The Amendment included the protection of personal data in the list of fundamental rights of the Constitution of the Republic. This measure values ​​all of the legislator's work in enacting the General Personal Data Protection Law (Law No. 13,709/2018 – LGPD) and in creating the National Data Protection Authority (ANPD). With this constitutional relevance given to data protection in Brazil, now with the status of a fundamental right, the obligation to comply with the LGPD and the independent action of the ANPD to regulate and monitor compliance with the law are further strengthened. Another main issue regulated by EC 115/2022 is the determination of the Union's private (exclusive) competence to legislate on data protection, thus ensuring that there is no risk of states and municipalities legislating or interfering in the application of the LGPD. Even though the LGPD, the main law on the subject of data processing in Brazil, is a federal law, states and municipalities could, through their powers, issue their own laws on the subject – which would lead to a confusion of rules that could alienate investors and further increase business costs in the country.

All the doctrinal effort and that of our courts becomes even more evident. It is worth noting that even before PEC 17, the protection of personal data was already being adopted by our doctrine, and also supported by other constitutional norms, such as the protection of privacy provided for in art. 5th, X and the general clause protecting the dignity of the human person, provided for in art. 1st, III. Corroborating the doctrine, our courts have understood that the rights to intimacy, protection of private life, inviolability of people's honor and image, directly related to the use of personal data, enshrine the right to informational self-determination and find constitutional support in art. 5th, X, of the Federal Constitution. Therefore, it is very important that all private organizations and public entities that process personal data adapt their processes, establishing a strong Data Protection Compliance program, to fully guarantee compliance with individuals' rights to the protection of their personal data.

The TeleSíntese website, from Portal Terra, reported that the National Congress enacted the PEC, which included data protection in the list of fundamental rights and guarantees. Dr. Anna Luiza Pires e Albuquerque de Berredo, partner in the TMT area at Maneira Advogados, was interviewed to comment on the topic.

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