Brazil’s Congress enacts constitutional amendment on Data Protection

On February 10, the National Congress enacted Constitutional Amendment (EC) 115, which includes the protection of personal data, including in digital media, in the list of fundamental rights and guarantees of the Federal Constitution of 1988. Fundamental rights are considered to be values inherent to human beings, such as freedom and dignity. Thus, Data Protection is now incorporated into this list of inalienable rights as an irrevocable clause – that is, one that cannot be altered. 

The subject originated in the Proposed  Amendment to the Constitution (PEC) 17/19 by the Senate, where it was approved, having been subsequently approved by the House of Representatives and returned to the Senate in October of last year for further consideration. Congressman Orlando Silva, rapporteur for the Proposal in the House of Representatives, pointed out that, alongside the Marco Civil da Internet (Brazilian Civil Rights Framework for the Internet”) and the Brazilian General Data Protection Law (LGPD), the new constitutional amendment concludes the “normative regulatory framework of the area and expects the conferring of autonomy to the the National Data Protection Authority (ANPD). 

Finally, it should be noted that one of the main amendments made by the House of Representatives to the original text was the provision for exclusive competence of the Federal Government to legislate on matters relating to the subject. The PEC attributes power to the Federal Government to legislate, organize and supervise the protection and processing of personal data, in accordance with the principles established in the LGPD. 

Thus, the constitutionalization of data protection is an important advance in the strengthening of the culture of privacy in the country, to ensure both the rights of data subjects and the guarantee of privacy and individual freedom. 

Demarest’s Privacy, Technology and Cybersecurity practice is available for more information on this and other related topics.