O direito à privacidade na sociedade da informação à luz da lei geral de proteção de dados pessoais: uma análise da (in)efetividade da lei no 13.709/2018 no Brasil a partir do estudo comparativo com o regulamento geral de proteção de dados da União Europeia

Abstract

The right to privacy, in its informational dimension, came to be especially protected in Brazil from Law No. 13.709 / 2018 - General Law for the Protection of Personal Data. The presente work aimed to investigate whether this law will cause changes in the behavior of data processing agents, and also whether it will be able to mitigate the risks to privacy in the information society, in order to promote effective safeguards for data subjects. For this, the deductive method was used - starting from the historical, social and cultural development of essential concepts for the study -, aided by the comparative method - from the simultaneous analysis between LGPD and GDPR -, and a theoretical, qualitative and descriptive/prescriptive research was carried out,– with the use of national and foreign doctrine, identification of the nature of the concepts, exposition of the theme and presentation of proposals/solutions based on European and national experience. It was concluded that the LGPD is able to successfully institute a personal data protection system aimed at preventing damage, but also ensuring repair in case they materialize. In order to lead agents to compliance, the LGPD empowers the National Data Protection Authority to monitor compliance with its provisions and apply administrative sanctions in the event of any violation. Examining the provisions and impacts of the GDPR in Europe, important subsidies were obtained for the analysis of the effectiveness of Law No. 13.709/2018, given the similarities between the legislations. The European experience demonstrates that the social effectiveness of the Regulation in the Member States of the European Union depends, considerably, on a strong, quick and independent action from the control institutions. In this sense, also in Brazil, the effectiveness of the LGPD will largely be subject to the action of the ANPD. In view of the territorial dimension of Brazil, its large population and a still incipiente culture of privacy that prevails in the country, the National Authority may face many difficulties to raise public awareness, respond to complaints from holders, as well as guide, supervise and sanction the treatment agents. Therefore, it will be necessary for ANPD to have sufficient financial and human resources to perform its duties quickly and effectively. As a possible way to alleviate such obstacles, the National Authority may enter into collaboration agreements with other institutions, such as SENACON, to carry out its educational activities, meet the demands of holders and create mechanisms to assess compliance with the rules by controllers and operators.