Veto on the publication of information about processes opposes constitutional principles

News published on the website Legal Consultant addressed the issue surrounding the restriction on the publication on the internet of information contained in labor and criminal actions. The report highlighted a comment by Dr. Matheus Puppe, partner in the TMT, Privacy & Data Protection area at Maneira Advogados.

Veto on publication of information about processes opposes constitutional principles

August 10, 2022, 6:48 pm

By Rafa Santos

The possibility of restricting the publication of information contained in labor and criminal actions on the internet opposes two antagonistic constitutional principles: the right to the protection of personal data, established in article 5, item LXXIX, of the Constitution since Constitutional Amendment 115/2022; and the principle of publicity for public administration acts, set out in article 37, paragraph 1.

The view that the wide dissemination of information contained in labor and criminal actions on the internet, based on consultation by name of the party, violates the fundamental right to data protection was defended by the Attorney General of the Republic, Augusto Aras, in an opinion sent to the Federal Supreme Court.

The topic will be addressed by the STF with general repercussion (i.e., with effect for all courts in the country) in the context of an Extraordinary Appeal with Appeal in which the website Escavador asks the Court to establish a national legal thesis, based on a decision handed down by the Court of Justice of Rio Grande do Sul in favor of the portal. The MPF statement was sent on August 3rd.

The TJ-RS denied a claim for compensation made by a man who had information about a labor claim filed by him disclosed by Google and Escavador using his personal data. Interestingly, this is the first time that the winning party in the original court has appealed to the Supreme Court for a thesis to be established at national level.

The conflict between the principle of publicity and judicial secrecy is not new, but the General Data Protection Law (Law 13,709) brought a new layer of complexity to the topic. This is the diagnosis of lawyer and consultant specialized in Law and new technologies, Omar Kaminski.

If the Supreme Court accepts the PGR's arguments, he says, the victory of the defense of privacy will limit nominal consultations or public linkages of legal proceedings to certain people.

According to Kaminski, in practice, the limiter would continue to be the secret of Justice. The execution of a possible favorable decision would continue to be conflicting, because it would require a change of mentality and this takes time. “Especially when it comes to the Judiciary, which even in cases under judicial secrecy still tends to include the full name of the parties in the report or device, nullifying any attempt at protection by search engines”, he explains.

The lawyer and president of the Data Protection and Privacy Commission of the Rio de Janeiro section of the OAB, Estela Aranha, in turn, understands that fully accepting the MPF's arguments would have a huge impact on the entire culture of procedural transparency, which goes against the constitutional provision of publicity for public administration acts — since the restriction on the right to information is an exception in our system.

“At the same time, the balance that the constitutional provision itself brings between broad publicity and the defense of privacy and social values ​​is important. In this case, data protection is also in the public interest of the entire society. Therefore, it is important that this publicity does not bring risks of discrimination”, he explains.

The expert maintains that, while these search engines are important for the administration of Justice itself, there must be greater control over data protection. “The LGPD has an important instrument, which is the data protection impact report, where this proportionality consideration can be made and measures to mitigate risks that may affect civil liberties and fundamental rights of holders of personal data can be identified”, he argues.

Matheus Puppe, partner in the TMT, Privacy & Data Protection area at Maneira Advogados and member of the Compliance GT of the CNJ and the Judiciary Integrity Committee, argues that each case should be analyzed in isolation.

“The situation must be analyzed not in an abstract and general way, but specifically for each type of tool, such as those that allow a limited and individualized search, based on legitimate interests to enable compliance with a legal or regulatory obligation, such as the practice of law. But I agree that indiscriminate use must be curbed”, he says.

Antonielle Freitas, DPO (Data Protection Officer) at Viseu Advogados and member of the National Association of Data Privacy Professionals (ANPPD), sees this debate as a “fight of giants”, opposing two principles protected by the Constitution.

“I believe that, if there is sensitive, private and intimate data about a person, even if there is no decree of judicial secrecy, the rule regarding publicity must be mitigated in favor of the autonomous and fundamental protection of the party's data, and the confidentiality of sensitive personal data must be ensured, even if the procedural act is public”, he says.

Compliance judiciary

Kaminski explains that the judgment by the STF may demonstrate the need for stricter rules of compliance on the part of the Judiciary, which is the primary source of information and media outlets as disseminators of news of public interest. He recalls that the publicization of procedural acts must continue to be the rule.

“With the floor of the National Data Protection Agency, which after two years of the LGPD being in force is still limited to informative, not punitive, activities”, he provokes.

In the opinion sent to the STF, Aras cites Resolution 121/2010 of the National Council of Justice and Resolution 139/2014 of the Superior Council of Justice. Both prevent the use of technological resources for broad and unrestricted consultation of these types of processes based on the name or other personal data of the people involved in the action. The objective is to avoid the formation of “dirty lists” of workers who have sued employers or any other form of discrimination.

Despite the recommendations, depending on the uniqueness of the party's name or surname, it is possible to find cases with just this data in several courts of Justice and also in the STF. This occurs, according to Kaminski, because standards like these require investments and a better technological culture.

Click aqui to read the MPF opinion
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Rafa Santos is a reporter for the magazine Legal Consultant.

Legal Consultant Magazine, August 10, 2022

https://www.conjur.com.br/2022-ago-10/stf-julga-conflito-entre-direito-informacao-privacidade