Transformation of the ANPD into a regulatory agency raises concerns

Report from Teletime reflected the Provisional Measure that transformed the ANPD into an autarchy. The website highlighted a comment from Dr. Matheus Puppe, partner in the Privacy & Data Protection area at Maneira Advogados, regarding the matter.

Although welcome, the transformation of the ANPD into a regulatory agency raises concerns

By Marcos Urupá

06/16/22

After the edition of the Provisional Measure (MP) 1.124/2022 by the government, which transforms the National Data Protection Authority (ANPD) into an authority of a special nature, several privacy and data protection experts interviewed by TELETIME pointed out their impressions about the body's new legal personality. In general, the measure was assessed as welcome, but it also raised some concerns, such as the financial aspect, for example.

For lawyer Matheus Puppe, it is a small change, but one that impacts the power of the ANPD. “As a special agency, it is now on par with other regulatory agencies, with its own budgetary allocation and an internal prosecutor's office, strengthening its supervisory and regulatory power, providing its own procedural capacity for legal actions and now with resources for better structuring”, explains the lawyer, partner of the Privacy & Data Protection area at Maneira Advogados.

Puppe believes that with this change a new cycle is born, where judicial and administrative actions may gain ground, and companies that have not yet adapted will have their risks increased. “For example, the change gives the ANPD the ability to promote legal actions in defense of broader rights or the application of precautionary measures against violations of the LGPD”, explained Puppe.

Antonielle Freitas believes that with the new legal personality, the ANPD takes a big step, resembling European authorities (DPAs), which will bring benefits to international cooperation. “With the MP, the National Data Protection Authority, as an agency separate from the Presidency of the Republic, now has the same levels of independence as other Brazilian agencies, such as Anatel, Anvisa and the Central Bank, with independent administrative and financial structures”, explains Freitas, who is DPO (Data Protection Officer) at Viseu Advogados.

Regulatory Robustness

For Willian de Souza from the firm Peluso, Stupp e Guaritá Advogados, the MP brings to the ANPD greater reliability and robustness to the Brazilian regulatory system in terms of privacy and protection of personal data, raising Brazil's level on the international scene in this regard.

In the assessment of Marcelo Cárgano, lawyer at Abe Advogados, the transformation of the ANPD into a fully independent authority will bring even more positive impacts to the population in general, such as the greater likelihood of Brazil being recognized as a country that provides adequate protection for personal data, which would facilitate the free international flow of data.

“It also favors Brazil's entry into organizations such as the OECD. I emphasize that in the publication “A Caminho da Era Digital no Brasil”, from 2020, the OECD expressly recommended that Brazil amend the LGPD and guarantee total independence to the ANPD to increase trust in the digital environment and strengthen digital security and the protection of personal data and consumers”, recalled the lawyer.

“The transformation of the National Data Protection Agency into an independent agency, by Provisional Measure nº 1124, published today, 14/06, in the DOU, is an important step already awaited since the publication of the General Data Publication Law. With the measure, the body assumes the legal personality of a regulatory agency, endowed with technical and decision-making autonomy, which brings more security to data holders and increases the level of adequacy of our country, especially on the world stage”, explains Nádia Cunha, from Jorge Advogados Associados.

She recalls that the change of legal personality of the ANPD follows a model already adopted by the European Union. "It is worth remembering that the Union, the States, the Federal District and Municipalities must also observe the General Data Protection Law (art. 1, sole paragraph, of Law 13,709/2018). Therefore, the autonomy to carry out all its duties, including in the face of public authorities, will certainly bring about more effective action by the National Data Protection Agency, with many advances, especially in relation to the inspection and application of sanctions to those who are not in compliance with the LGPD", points out the lawyer.

Concerns

Concerns were also raised with the edition of the MP this Wednesday, 14th. Victor Vieira, researcher at the Internet and Society Reference Institute (IRIS), remembers that the autonomy of the ANPD is something that has been expected for some time, even before the LGPD came into force. “This new legal personality is one of the requirements for the proper functioning of the Authority – without links to bodies of the Executive Branch and free to exercise its duties impartially and taking into account the public interest”, assesses Vieira.

However, the researcher sees some concerns in this change through the Provisional Measure. “Firstly, there are questions regarding the constitutionality of this change in the legal nature of the ANPD through an MP – although it can be argued that there is a certain urgency in defining what the legal constitution of the Authority will be like, because we are approaching the two-year deadline stipulated in law 13.853/2019 for this change in the legal nature of the ANPD, from an organ of the Presidency to a special authority”, explains Vitor Vieira. He recalls that the deadline for such a change to occur is November, the anniversary of the inauguration of the President of the ANPD, when its regimental structure came into force.

Another concern pointed out by Victor Vieira is that, in order for the Provisional Measure to actually have legal effects, it needs to be submitted to a vote in both the Chamber and the Senate, so IRIS representatives believe that it is too early to take ANPD's administrative autonomy for granted.

Another concern raised by Vieira is the absence, in the MP, of budget forecasts. “For the two previous points, something worrying about this new MP is the fact that there are no specific forecasts for the ANPD budget, leaving the autarchy essentially still linked to the discretion of the Presidency of the Republic in financial terms – which already proved to be a problem in the first years of the Authority's existence”, says the researcher.

Finally, Victor Vieira also remembers that this year is a year of presidential elections, and in this scenario, it is impossible to know whether the MP was the result of a legitimate interest in bringing beneficial changes to the country or, alternatively, edited with implicit intentions of electoral leverage – which complicates the analysis of the advantages and disadvantages of the Measure.

https://teletime.com.br/15/06/2022/apesar-de-bem-vinda-transformacao-da-anpd-em-agencia-reguladora-levanta-sobrecoes/