Anna Berredo comments on the TI Inside portal approval of PEC 17/2019

Report from the portal TI Inside dealt with the approval, by the Federal Senate, of PEC 17/2019, which makes the protection of personal data a fundamental right. The report reflected on the subject and highlighted Dr. Anna Luiza Berredo's comment on the topic.

Senate approves PEC that includes the protection of personal data as fundamental rights and guarantees

October 22, 2021

The Plenary of the Federal Senate approved the Proposed Amendment to the Constitution (PEC) 17/2019, which makes the protection of personal data, including in digital media, a fundamental right. The PEC also privately assigns the role of legislating on the subject to the Union. By agreement between the leaders, both rounds were voted on in the same session. Approved unanimously, the PEC received 64 votes in the first round and 76 in the second (the minimum required is 49). The text now goes for promulgation, in a session of the National Congress yet to be scheduled.

According to the rapporteur, the provision of the PEC that gives the Union the powers to organize and supervise the processing of individuals' personal data now offers “constitutional shelter” for the functioning of the National Data Protection Authority (ANPD), provided for in the General Law for the Protection of Personal Data (LGPD – Law 13,709, of 2018).

The constitutionalization of data protection as a fundamental right and an essential clause brings significant advances for holders of personal data and for the guarantee of privacy rights, data protection, and other rights, in addition to making even clearer the need for a multisectoral effort to strengthen a culture of privacy and data protection in the country.

The National Data Protection Authority (ANPD) celebrates this democratic victory, which demonstrates how data protection has gained legitimacy, space and relevance in Brazilian society, and will continue working to guarantee the protection of this fundamental right.

Repercussion

PEC 17/2019, authored by Senator Eduardo Gomes (MDB/TO), by granting constitutional status to the protection of personal data, represents an important step towards strengthening the legal context inaugurated by the General Data Protection Law (Law no. 13,709/2018). The proposal adds item XII-A to art. 5th of the Constitution, with the following wording: “the right to the protection of personal data, including in digital media, is guaranteed, under the terms of the law”. Also, through the inclusion of item XXX in art. 22, the PEC confirms the exclusive competence of the Union to legislate on the protection and processing of personal data.

“In addition to including the protection of personal data in the list of fundamental rights, integrating the immutable clause alongside the rights of privacy, freedom and free development of the personality, the constitutional change establishes legal security by defining the Union's competence to legislate on the matter, preventing conceptual innovations or the imposition of obligations through state and municipal entities. Although the PEC has not evolved towards ensuring institutional autonomy for the ANPD, preserving its original composition as a body of the direct public administration, linked to the Presidency of the Republic, the two other constitutional changes guarantee greater comfort in the exercise of citizenship in Brazil, as it provides a fundamental counterpoint to bill initiatives that aim to create investigative techniques that can potentially be used abusively by obtaining unlimited access to personal devices and communications”, says Anna Luiza Berredo, partner in the TMT, Privacy & Data Protection area at Maneira Advogados.

For Marcelo Cárgano, data protection lawyer at Abe Giovanini Advogados, “the approval of PEC 17 in Congress (with a significant vote in both the Chamber and the Senate) is another sign of the importance that the issue of personal data protection has gained among the political class and the population in general since the approval of the LGPD in 2018. The PEC will provide greater security to Brazilians by confirming the jurisprudence of the STF and include the fundamental right to the protection of personal data directly in the Federal Constitution. On the other hand, the attribution of exclusive competence to the Union to legislate on the protection and processing of personal data has a more ambivalent character. On the one hand, uniformity in applicable legislation could provide greater legal certainty for companies, on the other hand, municipal and state laws on the subject – such as State Law 17.301/2020, of São Paulo, which prohibited pharmacies and drugstores from demanding the consumer's CPF at the time of purchase without informing them. adequately and clearly about the use of your personal data – will be understood as unconstitutional, which may reduce the protection extended to citizens in the short term.”

“The express inclusion of the protection of personal data in the list of fundamental guarantees and exclusive competence of the Union serves to clarify and reinforce the right to privacy provided for in section is always welcome”, explains Márcio Chaves, partner responsible for the digital law area at Almeida Advogados. With information from Agência Senado.

https://tiinside.com.br/22/10/2021/senado-aprova-pec-que-inclui-a-protecao-de-dados-pessoais-como-direitos-e-garantias-fundamentais/