The Brazilian National Data Protection Authority (ANPD) has submitted for public consultation, until October 7, 2022, a preliminary study regarding the legal bases applicable to the processing of personal data of children and adolescents.

The lack of clarity of Article 14, Section 1, of LGPD (Federal Law No. 13,709 of 2018) allowed different interpretations on whether consent would be the only lawful basis for processing the personal data of the minor.

Based on the findings of the preliminary study, the ANPD asserts that the processing of personal data of children and adolescents can be carried out with support of the legal bases provided for in arts. 7 and 11 of the LGPD, observing the applicable legal requirements and the principle of best interest, pursuant to art. 14. The ANPD's interpretation is in accordance with Statement No. 684, of the IX Civil Law Conference, promoted by the Federal Justice Council:

“Statement No. 684: Art. 14 of Law no. 13.709/2018 (General Data Protection Law - LGPD) does not exclude the application of other legal bases, if applicable, observing the best interests of the child.”

Therefore, according to this interpretation, it is possible to rely on all the lawful bases, not just consent, to process personal data from minors. When consent is applicable, it must always be given in a specific and prominent way, by at least one of the parents or a legal guardian, and with due regard to the best interests of the child or adolescent.

Visit us at Tauil & Chequer

Founded in 2001, Tauil & Chequer Advogados is a full service law firm with approximately 90 lawyers and offices in Rio de Janeiro, São Paulo and Vitória. T&C represents local and international businesses on their domestic and cross-border activities and offers clients the full range of legal services including: corporate and M&A; debt and equity capital markets; banking and finance; employment and benefits; environmental; intellectual property; litigation and dispute resolution; restructuring, bankruptcy and insolvency; tax; and real estate. The firm has a particularly strong and longstanding presence in the energy, oil and gas and infrastructure industries as well as with pension and investment funds. In December 2009, T&C entered into an agreement to operate in association with Mayer Brown LLP and become "Tauil & Chequer Advogados in association with Mayer Brown LLP."

© Copyright 2020. Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. All rights reserved.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.