Data Protection becomes a fundamental right in Brazil

Yesterday (Feb. 10, 2022), the Brazilian Senate approved the Constitutional Amendment no. 115/2022, originated in the Proposal for Constitutional Amendment no. 17/2019, adding data protection into the list of fundamental rights set forth in article 5 of the Brazilian Constitution. Now, the article has a new item, which reads:

LXXIX – it is guaranteed, in the terms of the law, the right to personal data protection, including in the digital means.

With such development, no law may suppress or limit the right to personal data protection, given the supremacy of the Brazilian Constitution.

Another extremely important novelty brought by the PCA is the exclusive competence granted to the Union to legislate and oversee this subject, avoiding state and municipal disconnect and potentially conflicting laws, which guarantees uniformity and legal certainty in the legislation regarding data protection in Brazil to data subjects and processing agents.

Practically this change to the Constitution will not represent any significant difference in the Brazilian’s day-by-day. Our Constitution already provides for several fundamental rights related to personal data protection, including the inviolability of intimacy, private life, honor and individuals’ likeness. Also, it is not possible to say that Brazilians have tradition in protecting their own personal data.

On the other hand, data protection is increasingly gaining more importance and being considered a right to be watched over. In this sense, the PCA’s approval fortifies such tendency and will be another cornerstone in data protection claims. Also, the Brazilian Supreme Court issued a recent decision in the Direct Unconstitutionality Lawsuit n° 6393, granting constitutional protection to personal data. At last, it is not possible to say that Brazilians have tradition in protecting their own personal data.

Should you need more information about data protection, strategies for compliance with the LGPD or trends in the national and international scenarios, please do not hesitate to contact our Digital Law team at digital@kasznarleonardos.com.