Co‐authors: Vanessa Ferro and Juliana Tedesco
Data protection has undoubtedly been a concern for individuals and companies for some time now, but the apprehension on this subject has certainly increased in the past years and, more recently, driven by the scandal of global spying program of the US security agency (NSA) disclosed by former analyst Edward Snowden in June, 2013. In Brazil it could be no different.
As a result, it is quite natural that the entry into force, in June, 2014, of Law Nº 12.965, of April 23, 2014, which establishes principles, guarantees, rights and duties for the use of the Internet in Brazil (the "Brazilian Internet Act") has been leading into questions by society, legal scholars and Brazilian practitioners about data protection. The Brazilian Internet Act sets out general principles for the protection of privacy and personal data.
Before advancing on this topic, it is important to underline that in addition to the Brazilian Internet Act, general principles and provisions on data protection and privacy are also provided in the Federal Constitution, the Brazilian Civil Code and other laws and regulations that address particular types of relationships (e.g. the Consumer Protection Code and labor laws). Likewise, the governmental entities and bodies, certain market segments and professional activities are also governed by specific data protection and privacy rules.
The Brazilian Internet Act sets out principles for the use of the Internet, as well as the rights of Internet users and the duties of (a) Internet connection providers and (b) Internet application providers. Although the Brazilian Internet Act does not provide definitions for entities (a) and (b) under the current Brazilian legal doctrine, "Internet connection providers" are the service providers that offer access to an Internet connection, enabling users to connect their computers to the Internet allowing navigation on the World Wide Web and access to services such as e-mail transmissions. On the other hand, the "Internet application providers" are services providers who offer a set of features that can be accessed through a terminal connected to the Internet.
Therefore, the Brazilian Internet Act establishes standards for the Internet use in Brazil, including general principles for the protection of privacy and personal data and certain specific duties in relation to the collection, process, storage and sharing of personal data to be followed by the entities deemed Internet application providers and Internet connection providers, namely, (a) to provide Internet user with clear and complete information on the collection, use, storage, processing and protection of its personal data; (b) obtain the express consent of user for the collection, use, storage and processing of personal data; (c) not to disclose to third parties user's personal data, including connection records and records of access to Internet applications, unless upon express, free and informed consent of the user or in accordance with the cases provided by law; (d) to adopt all necessary and available measures to protect personal data, Internet user's privacy, private life, honor and image during the retention of personal data, as well as when making available connection logs and access to Internet applications logs, upon court order, pursuant to the provisions of the Brazilian Internet Act; (e) in the provision of Internet applications, refrain from retaining personal data that exceeds the purpose for which consent was given by the owner of the data; and (f) in case of an Internet application provider, to exclude, on irreversible basis, the personal data retained in its records, at the request of the users, at the end of the relationship between the parties, except in cases of mandatory log retention, as specifically set forth in Article 15 of the Brazilian Internet Act.
With a view to curb wrongful acts on the Internet environment, the Brazilian Internet Act imposes some sanctions in case of infringement of the Internet user's privacy, private life, honor and image during the retention of personal data and also, when making available connection logs and access to Internet applications logs, as well as on grounds of violation of personal data and secrecy of private communications and of logs. In fact, so far there are a few court decisions grounded on the Brazilian Internet Act related to data protection confirming that the Internet application providers have the obligation to store all data which can identify the user, and also to disclose such data upon court request.
The Brazilian Internet Act shall be complied with by Internet connection providers and Internet applications providers, in any operation of collection, storage, retention and handling of personal data or communications data where, at least, one of these acts takes place within Brazil, provided that (i) at least one of the terminals gathering, storing, retaining or treating the personal data or communications data is placed within Brazilian territory and (ii) the services are offered to the Brazilian public, in case the services are rendered by a legal entity located abroad, or at least that one member of the same economic group of the service provider is established in Brazil.
Moreover, presently there is a draft decree under public discussion in Brazil to regulate certain aspects of the Brazilian Internet Act, such as the principle of preservation and guarantee of net neutrality, according to which the responsible for the transmission, switching and routing is required to handle data packets in isonomic way, that is to say, without distinction of content, origin and destination, service, terminal or application. The wording of this draft decree is not yet available, as it will be drafted after, and based on, the public discussion which is currently being held on the Internet.
There is also a draft bill under discussion which deals specifically with the protection of personal data of individuals (the "Data Protection Bill"). In short, according to the provisionary wording of the Data Protection Bill, the subbject of such bill is the protection of personal data of individuals only, although the definition provided for personal data in such draft bill is very broad and does not distinguish data owned by individuals or legal entities. In addition, the Data Protection Bill set outs the rights of the owners of personal data, other rules and the following principles: (a) principle of finality, according to which treatment should be performed with legitimate purposes, specific, explicit and known to the owner of the data; (b) the adequacy principle, by which treatment should be compatible with the desired purposes and legitimate expectations of the owner of the data, according to the context of treatment; (c) the principle of necessity, which states that treatment should be limited to the minimum necessary for achieving its target purposes, including appropriate, proportionate and not excessive data; (d) principle of free access, for which the owner of the data should be guaranteed easy and free consultation of treatment modalities and completeness of their personal data; (e) the principle of data quality, by which the accuracy, clarity and update of data must be guaranteed, in accordance with the frequency required for the fulfillment of the purpose of their treatment (i.e. the duration of the data treatment must be taken into consideration); and (f) the transparency principle, by which clear and adequate information on completing the treatment must be guaranteed to the owners of the data.
The general standards established by the Brazilian Internet Act and other laws and regulations addressing data protection shall be broadened once the regulation on the Brazilian Internet Act and the Data Protection Bills are approved.
In summary, the Data Protection Bill is destined to individuals and is still pending approval, while the rules set out in the Brazilian Internet Act, pending regulation by a specific decree mentioned above, is destined to entities deemed "Internet connection providers" and "Internet application providers". Notwithstanding, based on the framework of laws and regulations currently in force establishing general principles and provisions on data protection, all individuals and legal entities shall handle personal data with utmost care, complying with the rights to privacy, protection of personal data and secrecy of private communications. It is advisable, for instance, (a) to always obtain prior and express consent to retain someone's personal data; (b) to retain someone's personal data only to the extent effectively needed for a specific purpose; and (c) to adopt internal policies to protect privacy and personal data.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.