Brazil launches consultations on increased regulation of data privacy

Wednesday, 06 September 2023
The Brazilian National Data Protection Agency (Autoridade Nacional de Proteção de Dados, ANPD) has opened two public consultations on the regulation of data under the country’s data protection law (Lei Geral de Proteção de Dados Pessoais, LGPD).
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The first of the two consultations, which will run until September 14, 2023, focuses on the regulation of international transfer of personal data. The ANPD is aiming to ensure that data is being transferred pursuant to the principles and foundations of the LGPD and will sanction non-compliant processes accordingly.

Draft proposals include distinguishing between international data transfer and international data collection and the definitions of requirements, conditions and minimum guarantees for an international transfer of data. They also set the guidelines and requirements of the obligations of data processors and controllers and the criteria considered by the ANPD in deciding if other countries’ data protection regulations are adequate.

The consultation also examines the draft regulations proposed around standard and specific contractual clauses: the mechanisms adopted as additional safeguards in international transfer of data.

The ANPD followed the launch of this consultation with a second call for contributions, this time on its preliminary study of the LGPD’s legitimate interest legal base. The base allows for the processing of non-sensitive personal data where necessary in order to meet the legitimate interest of the data controller or third parties. However, experts note that this is a highly subjective area as it requires data processing agents to balance what they consider legitimate interest with the fundamental rights and freedoms of the data subject.

The study therefore aims to clarify what classifies legitimate interest and provide examples and case studies of the application of the legal basis. It also provides a legitimate interest assessment template for processing agents to assess the suitability and risks of applying the legal basis on a case-by-case basis.

Consultation responses will help the ANPD to create legal guidelines on the basis, the Brazilian government says. The second consultation closes on September 15, 2023.

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