23 Sep Superior Electoral Court receives contributions for the disclosure of candidates’ data in 2022
By Fabio Vieira and Gabriela Tchalian
On June 2 and 3, 2022, Superior Electoral Court (“TSE”) promoted a public hearing in hybrid format, aiming to receive suggestions on the application of the General Data Protection Law (“LGPD”) on disclosure of candidates’ data for the 2022 elections. The hearing was convened by TSE’s president, Minister Edson Fachin, and conducted and moderated by ombudsman judge, Judge Larissa Nascimento.
The list of debaters included experts and entities in both electoral law and right to information fields.
Examples of participants are Brazilian Academy of Electoral and Political Law, National Data Protection Council, Data Privacy Brazil, Forum of Access to Public Information, Legal Grounds Institute, Brazilian Democratic Movement, Open Knowledge Brazil, Ombudsman of Regional Electoral Court of Paraná, Labor Democratic Party, Transparency Brazil.
Throughout the debate, it was sought to define whether there was a need for amends regarding disclosure of candidate’s information, available on platforms DivulgaCandContas and Electronic Judicial Process, in addition to personal, patrimonial and partisan data and statements required in the registration.
Attempting to balance the transparency needed for the voter to make an informed choice of their candidate and respect the candidate’s right to privacy, debaters focused on the amount, extent, and identification of what personal data should be disclosed and for how long.
Among the issues proposed for discussion, it must be emphasized:
- The need for adjustments in the platforms for dissemination of information on candidates and donors and the processing of proceedings in the electoral court;
- The need to reconsider access to the content of criminal certificates and personal data of candidates for those who wish to register applications; and
- Whether the LGPD requires a change in the way in which the list of declared assets of the candidates is disclosed.
In Brazil, Law on Access to Information (“LAI”) establishes in article 3rd, I, disclosures as a general rule. However, the standard should be balanced with the candidates’ right to data protection, established in the LGPD. There is now a doctrinal and academic consensus that LGPD and LAI are complementary, non-antagonistic laws.
The concern about privacy and data protection in the electoral field has already been raised before. In 2021, National Data Protection Authority and TSE jointly published the LGPD’s Guidance for Application by processing agents in the electoral context. However, the focus of it was the protection of the voter against candidates, parties, coalitions, and the Public Administration itself.
The public hearing recorded dissents, such as the time of personal data availability, the extension of disclosure and the disclosure of some specific information, such as racial self-declaration and declaration of the candidate’s assets. But there was also important consensus:
- TSE shall not use the as a mechanism for omitting data;
- There is information that could be omitted for the sake of the right to privacy and data protection; and
- It is essential that information needed for the voter to know their candidate is maintained.
Although the TSE informed that it intended to take advantage of the debate to identify appropriate adjustments to DivulgaCandContas, Electronic Judicial Process and registration during the opening, it did not express a deadline to make disclose its findings.
This article is intended exclusively to provide information and does not contain any opinion, recommendation or legal advice from KV Advogados in relation to the matters herein addressed. Copyrights are reserved to Kestener & Vieira Advogados.
No Comments