20 Apr THE ATTORNEY GENERAL OFFICE AND THE BRAZILIAN BAR ASSOCIATION SPEAK UP AGAINST THE LGPD’S POSTPONEMENT
The Federal Senate unanimously approved on April 3, 2020, Bill of Law No. 1.179/2020, which coordinates emergency measures to mitigate the impacts of the COVID-19 pandemic on the economy, proposing transitional rules for various matters, among them, data protection issues (“PL 1.179/2020”) [¹].
With regard to data protection, PL 1.179/2020 proposes to: (i) postpone the date of entry into force of the Brazilian General Data Protection Regulation (“LGPD”) provisions – scheduled for August 2020 – for January 1st, 2021; and (ii) create a time-lapse for the application of sanctions provided for in the LGPD, which would cease to exist on August 1st, 2021.
Currently, PL 1.179/2020 is waiting to be analyzed by the Chamber of State Representatives and, if approved, will need to be sanctioned by the president before it becomes law.
During the last week, the Attorney General Office (“MPF”) and the Brazilian Bar Association (“OAB”) have submitted statements to the Brazilian Congress stating that they are against the postponement of the LGPD’s entry into force.
During the last week, the Attorney General Office (“MPF”) and the Brazilian Bar Association (“OAB”) have submitted statements to the Brazilian Congress stating that they are against the postponement of the LGPD’s entry into force.
The main concerns are related to the increasing use of mass data processing and the use of anonymization and pseudonymization techniques, whether to measure the progress of the epidemic, or to map the individuals movements that do not comply with social isolation measure.
Due to this, the MPF and the OAB state that the LGPD applies to the current scenario would assure the data subject’s that any measures adopted due to the pandemic would be in accordance with the principles, mainly of the purpose, transparency, minimization, adequacy and safety, provided in the LGPD.
In addition, as soon as the effects of the pandemic and the need for processing cease, the data subject would be guaranteed in accordance with article 18, IV, of the LGPD the right to verify and request the complete elimination of their data from the databases of treatment agents.
Another argument highlighted by the institutions is that the postponement of the LGPD’s entry into force contradicts the tendency of legal systems in other countries to strengthen data protection in times of COVID-19.
The MPF also defended the economic importance of the LGPD, due to the entry into force of the General Data Protection Regulation (“GDPR”), a national legal framework regarding the protection of personal data became urgent for Brazil’s integration with the international data flow and, on a larger scale, to the global digital economy.
It should be noted that the GDPR prohibits the international transfer of data to countries that do not offer a degree of data protection similar to that of the country of origin.
In this sense, it is a commercial advantage for a country to be considered as having legislation with the same level of data protection as the GDPR, which allows greater flexibility in the data flow, regardless of one party offering the other additional guarantees or obtaining previous authorizations from the competent national data protection authority.
In this regard, at the end of the technical note, the MPF upholds that postponing the LGPD’s administrative sanctions provisions, only, could offer a more advantageous alternative, making sure that there is time for the compliance processes of companies and of the public sector.
The MPF also mentions that the installation of the National Data Protection Authority (“ANPD”) and the National Data Protection Council is fundamental in this process of construing understandings and adapting to the law regime and recommends that it occurs as soon as possible.
This article is intended exclusively to provide information and does not contain any opinion, recommendation or legal advice from KGV Advogados concerning the matters herein addressed. Copyrights are reserved to Kestener, Granja & Vieira Advogados.
[¹] For more information about Bill of Law No. 1.179/2020 and its impacts on data protection, clique here to check-out our article “Will the LGPD’s entry into force be postponed?”.
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