Personal data protection to become a fundamental right in Brazil

The Brazilian Senate has passed a proposal for an amendment to the Constitution which includes personal data protection to the list of citizen fundamental rights and guarantees.

Data available in digital channels is also covered in the proposals, which will be enacted by Congress, since amendments to the Constitution do not require the presidential sanction stage. There were no votes against the amendment.

The proposal establishes that the federal government is sole responsible for the organization and supervision of the protection and processing of personal data, and has exclusivity in terms of legislation relating to the protection and processing of personal information.

Moreover, the amendment means personal data protection becomes an unchangeable clause of the Brazilian Constitution, meaning that any future alterations must be aimed at expanding, improving and safeguarding citizen rights to data privacy.

This was the second time the proposals were analyzed by the Senate: in 2019, senators scrutinized the bill for the first time, when prosecutors involved in an anti-corruption investigation and government officials including president Jair Bolsonaro had their Telegram accounts hacked.

According to the rapporteur of the bill, senator Simone Tebet, the proposal brings the principles of the General Data Protection Regulations (LGPD) to the Constitution. Introduced in September 2020, LGPD regulates personal data processing by individuals, public or private entities in Brazil across any medium, including digital media, with a goal of ensuring the privacy of data subjects.

The sanctions relating to the data protection regulations were enforced in August 2021 and fines can reach up to 2% of the company’s revenue in cases of non-compliance. The board members of the body responsible for enforcing the regulations, the National Data Protection Authority (ANPD), were appointed in October 2020 and the body announced its strategy in February 2021.

According to a survey carried out by Datafolha Institute on behalf of Mastercard, Brazilians are concerned about the security of their data: some 92% of the users of digital services said they are aware companies retain their information to some degree. However, on a scale of 1 to 10, where 10 is “very secure”, 5.1 is the average score given to how secure respondents feel their information is in digital environments.