The current scenario of Data Protection Law in Brazil
Essay by Priscilla Silva
10 de September de 2020
The scenario currently faced in Brazil is that of great urgency for the adaptation and implementation of the new data protection system.
On August 26th, 2020, the Brazilian Federal Senate removed article 4 of the Provisional Executive Act (MP) 959/2020, which provided for the postponement of the General Data Protection Law (LGPD). This decision is final and determinant, for the subject matter has already been considered by the House of Representatives.
However, this does not mean that the LGPD came into force effective immediately. For that to occur, the PLV n° 34/2020, which stems from the MVP n° 959/2020, needs to be sanctioned by the president. This is due to the interpretation of the legislative process provided for in article 62 of the Brazilian Federal Constitution.
Regardless of whether the decision is to veto or to sanction the project, the removal of article 4 will occur at the time of the president’s decision, meaning that the official date foreseen for the LGPD to come into force – August 14th, 2020 – would be maintained. However, as the effects do not retroact, the LGPD will enter into force on the day following the presidential sanction.
An issue that is of great concern to specialists is the effective implementation / coming into force of the law without the constitution of a National Data Protection Authority, especially considering that the articles relating to the creation of the authority have been in force since December 2019. For this very reason, the Federal Senate also decided for the immediate implementation of the National Data Protection Authority.
Finally, we must consider that articles 52, 53 and 54 of the LGPD concerning administrative penalties / sanctions will only come into force in August 2021. Nevertheless, this should not be a reason for postponing all necessary adaptations for fully complying with the LGDP, for once it is officially sanctioned, civil liability in court will already be possible.
Thus, LGPD’s entry into force is threefold, but adequacy and adaptation are called for immediately!
- Original text by Priscilla Silva (Law Tech Researcher, PhD candidate PUC-Rio and fellow at BYU and Oxford Uni)
- Translation by Beatriz L M Nunes (Translator, IP Law Specialist PUC-Rio, English teacher)