Understanding the final version of LGPD

Since it came into force in August 2018, Law No. 13.708/2018 (“General Data Protection Law” or “LGPD”) has been through numerous debates, as much in the legislative sphere as in the business sphere.

Inspired by the European General Data Protection Regulation (“GDPR”), a rigorous set of rules regarding privacy and data protection, Brazil took its first steps to unify norms and understandings about data protection of natural persons, with the goal of reaching the same level of protection guaranteed by other countries, such as our partners from Mercosur, Argentina and Uruguay.

On Tuesday (July 9, 2019), Brazil took another step: with the publication, in the Official Union Diary of Law No. 13.853/2019, with the results of the analysis and conversion of Provisional Measure No. 869/2019, which modifies and consolidates the LGPD.

Besides converting into law Provisional Measure No. 869/2019, Law No. 13.853/2019 also changed some provisions in the LGPD. Below, we briefly highlight some of its main changes:

(i) Data Protection Officer (“DPO”).

The DPO is understood to be: “the person indicated by the controller and operator to act as a communication channel between the controller, data owners and the National Supervisory Authority (“ANPD”).

(ii) Treatment of personal data related to health.

In this new version, the treatment of data related to health seems to be wider; health protection now encompasses procedures made by health professionals, health services or sanitary authorities.

In addition, the possibility of sharing health data for economic purposes is also more flexible, as long as the following conditions are met: (a) the provision of health services, pharmaceutical assistance and health assistance, including auxiliary services for diagnosis and therapy, benefits the data owner’s interests; and (b) there is an allowance for transferability of data when requested by the owner or to allow financial and administrative transactions resulting from usage and provision of health services, pharmaceutical assistance, and health assistance.

(iii) National Supervisory Authority (“ANPD”).

The ANPD shall be a federal administration public body, part of the Republic of the Presidency.

The legal nature of the ANPD is transitory and can be changed in up to 2 (two) years after entering into force by the regimental structure, by the Executive Power into an indirect federal public administration entity, submitted to a special autarchy regime and linked to the Republic of the Presidency. This change aims to allow greater autonomy and independence for the ANPD.

(iv) Automated Treatment.

The drafting of the LGPD initially provided that a data owner could request a review of decisions made exclusively in an automated format and that this review should be made by a human agent.

The new draft maintains that the data owner may request such reviews and removes the obligation that it be made by human agents.

This measure aims to make it easier for companies, especially startups, to handle requests for reviews.

(v) Sanctions.

Law No. 13.853/2019 maintained administrative sanctions and determined that the proceeds from the collection of fines by the ANPD, whether or not in active debt, will be allocated to the Fund for the Defense of Diffuse Rights (“FDDR”).

The FDDR is a fund of financial nature, linked to the Ministry of Justice and Public Security, created in 1988 to manage proceeds of fines, judicial condemnations, and damages paid by consumers.

Law No. 13.853/2019 has brought other significative changes which will be published in future newsletters prepared by the Data Protection and Privacy Department of Kestener, Granja & Vieira Advogados throughout the coming weeks.

 

The Data Protection and Privacy Department of Kestener, Granja & Vieira Advogados is available to provide any further information required on this subject.

 

Fabio Alonso Vieira | Phone.: +55 11 3149-6111| fabio.vieira@kgvlaw.com.br

 

This article is intended exclusively to provide information and does not contain any opinion, recommendation or legal advice from KGV Advogados in relation to the matters herein addressed. Copyrights are reserved to Kestener, Granja & Vieira Advogados.