Tag: ANPD
24. September 2021
Last month Brazil’s Chamber of Deputies approved the Federal Senate’s proposal to amend the Constitution making the protection of personal data, including in digital media, a fundamental right for all citizens. According to the proposal, the Federal Government would have exclusive competence to legislate and supervise matters in this area.
The country already has a General Law for the Protection of Personal Data (LGPD) and the National Data Protection Authority (ANPD) as a supervisory body. The deputy Orlando Silva pointed out that the proposal consolidates the regulations for the protection of personal data and justified the need to include data protection as a constitutional right as follows:
All of us here systematically use internet applications, and the management of these applications is based on the provision of personal data, which is often manipulated without each of us knowing the risks to our privacy.
The deputy Isnaldo Bulhões added:
Without a doubt the proposal is a step forward, because we have seen major scandals, major violations, and fraud that have advanced a lot in recent times with technological development in Brazil and in the world.
A peculiarity of the amendment adopted by the Plenum is the deletion of the provision to make the ANPD an independent body, which would be part of the indirect federal public administration and subject to a special autonomous regulation. It was argued that the autonomy of the ANPD is not in question, but a constitutional regulation in this regard has never been adopted for any other agency.
For final approval the deputies’ adjustments require the proposal to return to the Federal Senate.
11. November 2020
Since 18 September 2020, the main provisions of the Brazilian Data Protection Law “LGPD” are in effect. At the same time, Brazilian businesses have been facing legal uncertainty because Brazil’s national Data Protection Authority (“ANPD”) is still not fully functional (we reported). The ANPD shall provide businesses with vital guidance, inter alia, by assessing foreign countries’ level of data protection for international data transfers, Art. 34 LGPD.
On 15 October 2020, the President of Brazil appointed the five members for the ANPD Board of Directors. Following the formal approval process of President appointees in Brazil (“Sabatina”), the Infrastructure and Services Commission of Brazil’s Senate approved of the President’s appointees on 19 October 2020.
Finally, on 20 October 2020, the Senate’s plenary approved of the five appointees. This marks another major step in the ANPD becoming fully operational. The serving terms of the Board of Directors will be staggered:
- Serving a six-year term: Waldemar Ortunho, current president of Telebras, a state-owned telecommunications company
- Serving a five-year term: Arthur Pereira Sabbat, currently the Director of the Institutional Security Office (GSI) for the Government’s cybersecurity
- Serving a four-year term: Joacil Basilio Rael, currently advisor at Telebras
- Serving a three-year term: Nairane Farias Rabelo, currently Partner at a law firm specialized in Tax Law and Data Protection Law
- Serving a two-year term: Miriam Wimmer, currently a Director of Telecommunications Services at the Brazilian Ministry of Science, Technology, Innovation and Communications
However, Annex II to the Presidential Decree 10.474 establishing the ANPD sets forth that many more yet vacant positions of the ANPD will have to be filled before it may be fully functional. Until then, Brazilian businesses remain waiting on guidance from the ANPD.
28. August 2020
Earlier this year, in April, the President of Brazil issued Provisional Measure #959/2020, which dealt with emergency measures in face of the pending Coronacrisis. The Provisional Measure (“PM”) did not only set rules for the federal banks’ payments of benefits to workers affected by the reduction in salary and working hours and the temporary suspension of employment due to the pandemic, but also postponed the effective date of Brazil’s first Data Protection Law (“LGPD”) from the 14 August 2020 to the 3 May 2021 (we reported).
In Brazil, PMs serve as temporary law and are valid for a maximum period of 120 days, in which both chambers of the National Congress must approve of the PM in order to become permanent law.
As the 120 days period was coming to an end, the House of Representatives approved of the PM on 25 August 2020, but included an amendment to delay the effective date only to the 31 December 2020. One day later, on 26 August 2020, the Senate approved of the PM, but provided yet another amendment to not include any delay of the LGPD’s effective date at all. The Senate’s amendment rather postulates that violations against the LGPD shall not be santioned by the Data Protection Authority until 1 August 2021. Thus, neither the House of Representative’s postponement to the 31 December 2020 nor the President’s intial postponement to the 3 May 2021 were approved of. This development came to a great surprise because in April, Brazil’s Senate itself introduced Law Bill “PL 1179/2020” which aimed at postponing the effective date of the LGPD to 1 January 2021.
After all, the LGPD will become effective very soon. Upon the rapid developments regarding the LGPD, legal commentators from Brazil still share some confusion to when the law will become valid exactly. They report that the law will become effective either when the President signs it into law or retroactively on 14 August 2020. In any case, many Brazilian businesses are reportedly not ready for the LGPD whilst also facing a very difficult economic environment, as Brazil is suffering from the consequences of the pandemic.
Moreover, Brazilian businesses are also facing legal uncertainty because Brazil’s national Data Protection Authority (“ANPD”) is still not fully functional. Only on 26 August 2020, Brazil’s President passed Decree 10.474 to establish the ANPD. However, the new Data Protection Law gives the ANPD many vital responsibilities that it has not been able to fulfil, because it hadn’t been established yet. These responsibilities include
- Recognising good practices and best-in-class examples of accountable privacy programs,
- Establishing rules, procedures and guidance for organisations as required by the LGPD,
- Clarifying LGPD provisions,
- Providing technical standards to organisations, and
- Enabling international transfers of personal data.
As the recent developments and the status quo of the national Data Protection Authority suggest a rocky road ahead for Brazil’s privacy landscape, the fundamental milestones of making the LGPD effective and establishing the ANPD have been passed now. At the same time, Brazilian businesses can draw hope from the fact that they have time to become compliant until 1 August 2021.
8. May 2020
The Coronavirus is affecting South America, like the rest of the world, and it is spreading rapidly in its largest country: Brazil. Brazil’s Government and Legislators try to handle both the public health crisis and the economic crisis that the country is facing. Now both branches have adopted emergency measures to alleviate the effects of the virus, even impacting the enforcement of the country’s new national Data Protection Law (“Lei Geral de Proteção de Dados Pessoais” or “LGPD”).
The National Congress of Brazil only passed the LGPD in August 2018. It was originally scheduled to come into effect on 15 August 2020 (we reported). As the effects of the Coronavirus began to impact Brazilian businesses, many companies called for the postponement of the LGPD’s effective date due to the difficult economic environment and due to the fact that Brazil’s national Data Protection Authority (“ANPD”) is still not fully functional.
On 3 April 2020, the Senate of Brazil unanimously approved of the Law Bill “PL 1179/2020” which includes a provision to delay the effective date of the LGPD until 1 January 2021. Furthermore, the Bill sets forth that non-compliance with the LGPD shall not be sanctioned by the Data Protection Authorities until 1 August 2021.
The second chamber of Brazil’s National Congress, the House of Representatives, debated “PL 1179/2020” all throughout April 2020 and considered the implications of the LGPD’s postponement for the privacy rights of individuals, especially with many emergency measures on the way that were increasingly restrictive on privacy rights. A vote on “PL 1179/2020” by the House of Representatives was still pending by the end of the month.
On 29 April 2020, the President of Brazil took matters into his own hands when he issued Provisional Measure #959/2020. The measure postponed the effective date of the LGPD to 3 May 2021, without segmenting the postponement into two stages like the Senate’s Law Bill “PL 1179/2020” stipulated.
Provisional Measures issued by the President of Brazil serve as temporary law and are valid for a period of 60 days which the President may extend for another 60 days. During this time period, both chambers of the National Congress must approve of the Provisional Measure in order to become permanent law. If Congress disapproves, the measure will be invalidated.
