On Thursday, February 10, Brazil’s National Congress will enact Constitutional Amendment 115, which converts protection of personal data – also in digital media – into a fundamental right.
The alteration was approved by the Brazilian Senate in October last year, and now grants the federal government powers to organize and supervise protection and processing of personal data, in accordance with Brazil’s General Data Protection Law (Lei Geral de Proteção de Dados/LGPD – 13.709, of 2018). The measure enters into force on date of publication.
To attorney Luiz Fernando Plastino Andrade – who specializes in Intellectual Property, Privacy and Data Protection at BTLaw –, enactment of this amendment is extremely important to strengthening data protection in Brazil.
“It expressly adds protection of personal data to the list of fundamental rights – something we consider extremely positive –, alongside other rights concerning the confidentiality of correspondence and telecommunications”, he says.
According to Plastino, recognition of an autonomous right to data protection consolidates the understanding of Brazil’s Superior Court when it judged Direct Action of Unconstitutionality (Ação Direta de Inconstitucionalidade/ADIn) 6393 last year (in a case involving mandatory sharing of telephone companies’ data with the national Institute of Geography and Statistics/IBGE). He highlights that, as well as a global trend, this recognition has been a constant demand in the agenda of Brazilian movements that defend the rights of internet users since the late 2000s.
“The amendment also clarifies that the protection of personal data is now a legislative matter that belongs exclusively within the domains of the legal competence of the State, thus reducing potential conflicts with local laws. This is also very positive, since it prevents the scenario from becoming even more complex, especially in the face of various laws and municipal and state law projects dealing with data protection, usually focused on public administration itself and on its relationship with citizens”, he emphasizes.