05 Aug Understand the technical cooperation agreement between ANPD and TSE and ANPD’s orientative guide
By Fabio Alonso Vieira and Eduarda Mourad Baldavira
At the end of November 2021, Brazilian National Data Protection Authority (“ANPD”), by its president-director Waldemar Gonçalves Ortunho Junior, and Superior Electoral Court (“TSE”), by Minister Luís Roberto Barroso, signed the Technical Cooperation Agreement No. 4/2021 (“Agreement”), which aims to implement cooperative actions related to the implementation of Brazilian General Data Protection Law (“LGPD”).
The partnership between ANPD and TSE is of enormous importance in the work of preserving the fundamental rights of citizens, especially regarding electoral participation. The Agreement focuses on the right of data protection in this scenario.
To fulfill its purpose, the Agreement attributes several responsibilities to ANPD and TSE, including:
(i) Share, among themselves, documents, studies, research, information, knowledge and experience in their areas of operation, unless the sharing in question threatens, compromises, or may cause any damage to the activities of analysis and verification of alleged infractions, to the performance of evidentiary diligences, or to the granting of preventive measures under the competence of the ANPD or TSE;
(ii) The ANPD shall subsidize the TSE as to the content of any material to be developed jointly, including technical guidance as to the content and interpretation of the LGPD. When it comes to the content and interpretation of the electoral legislation, the TSE should subsidize the ANPD.
(iii) Conducting, together, the principles and criteria to be used for the preparation of guidance material;
(iv) Jointly creating and approving guidance material regarding the application of LGPD provisions in the electoral context;
(v) Informing about meetings, gatherings, workshops, technical visits, courses, lectures, conferences, seminars, symposiums, congresses, or any events that may contribute to the TSE’s capacity building regarding the fight against activities harmful to the LGPD.
According to the president of TSE, the current information processing capacity has increased the concern with the protection of citizens’ personal data. Therefore, it is necessary to raise awareness and guide candidates, parties, and voters about the impacts of LGPD on the electoral process.
Continuing the relationship established between ANPD and TSE through the Agreement, on January 3, 2022, the Orientative Guide (“Guide”) for the application of LGPD by processing agents in the electoral context was published.
The Guide encompasses practical guidelines for LGPD enforcement during this year elections and aims to present the main aspects to be considered by candidates, coalitions, federations, and political parties for the processing of personal data from potential voters to ensure data protection, the privacy of data subjects, and the smoothness of the electoral process, without hindering communication between candidate and citizen, which is essential to the democratic process.
It is worth registering that the Guide published is in its first edition, being able to receive comments and contributions by society through a simple e-mail to ANPD or contact to TSE ombudsman.
By means of didactic examples, the Guide seeks to demonstrate that the same deed may generate repercussions in different legal spheres. That is, a single fact may create consequences both on the data protection and privacy field and in the electoral justice field. That grants competence to, at least, two different bodies – ANPD and Electoral Courts – to inspect, guide and sanction. For this reason, the partnership and joint action of public agencies and entities grant efficient law enforcement, including on protection of personal data, which was described on the very Guide as essential do ‘democracy defense’, and avoid that somebody is held accountable twice for the same act.
Finally, the document brings important clarifications:
(i) For usage of database collected prior to the effectiveness of the LGPD; it is recommended that databases are progressively adapted to the obligations established by LGPD;
(ii) The cession, donation and sale of databases is prohibited by electoral legislation;
(iii) Sending electronic and instant messages with electoral propaganda content must be carried out based on any of the legal bases provided in articles 7 and 11 of LGPD;
(iv) If the intended activity involves the mass sending of instant messages, the legal basis will necessarily be consent.
The Agreement (here) and the Guide (here) are fully available for consultation.
This article is intended exclusively to provide information and does not contain any opinion, recommendation or legal advice from KV Advogados concerning the matters herein addressed. Copyrights are reserved to Kestener & Vieira Advogados.
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