PEC enacted that defined data protection as a fundamental right

The National Congress enacted this Thursday, 10th, Constitutional Amendment (EC) 115, which amends the 1988 Constitution and includes the protection of personal data among fundamental rights and guarantees. The text also establishes the exclusive competence of the Union to legislate on the subject.

The amendment originates from the Proposed Amendment to the Constitution (PEC) 17/19, approved by the Chamber of Deputies and the Senate last year. The PEC includes in article 5, which deals with individual and collective rights, a new section that states that “the right to the protection of personal data, including in digital media”, is guaranteed, under the terms of the law. It also attributes to the Union the powers to organize and supervise the protection and processing of personal data, in accordance with the General Data Protection Law (LGPD).

Inclusion in the Constitution makes the protection of personal data a “stalwart clause” – meaning that any change on this topic will have to be to expand and protect rights.

For the lawyer, specialized in data protection, Nádia M. F. Cunha, the promulgation of EC 115 means progress for the country. "Like the European Union, Brazil is today advancing in its consolidation as a country that has the protection of personal data as a priority. The promulgation, by the National Congress, of PEC 115, which includes the protection of personal data as a fundamental right in our Federal Constitution, in addition to establishing the exclusive competence of the Union to legislate on the protection and processing of personal data, should raise the country internationally in its level of adequacy, with better visibility by the international community, which strengthens Brazil's relationship with other countries that have a high level of suitability.”

According to lawyer Anna Luiza Berredo, the proposal that brings about the express inclusion of the protection of personal data in the list of fundamental rights of the Constitution of the Republic further values the creation of the National Data Protection Authority (ANPD) as an independent entity to regulate and monitor compliance with the law. "The confirmation of the right to data protection in the Federal Constitution will significantly contribute to compliance with the LGPD in the country. It is very important that all private organizations and public entities that process personal data adapt their processes, establishing a strong compliance program, to fully guarantee compliance with individuals' rights to the protection of their personal data."

Another issue addressed by Berredo is that determining the Union's exclusive competence to legislate on data protection, "guarantees that there is no risk of states and municipalities legislating or interfering in the application of the LGPD. This would lead to a confusion of rules and could make business in the country unfeasible", he notes.

HISTORICAL LANDMARK

The LGPD was approved in 2018 and came into force in September 2020. The law represents a historic milestone in the regulation of the processing of personal data in Brazil, both in physical media and on digital platforms.

In addition to changing the way private institutions collect, store and make user information available, the LGPD is also aimed at public institutions — therefore, it must be followed by the Union, states, Federal District and municipalities.

https://www.telesintese.com.br/congresso-promulga-pec-sobre-protecao-de-dados-pessoais/