The coordinators of ABPI’s Digital Law & Data Privacy Study Committee, Fabio Luiz Barboza Pereira and José Eduardo Pieri, formulated, with the contribution of members, the document with ABPI’s proposals for the regulation of dosimetry and application of sanctions within the scope of the General Data Protection Law (Law 13.709/2018 or LGPD). The recommendations were presented on September 12th by Barboza Pereira at the Public Hearing promoted by the ANPD – Brazilian National Data Protection Authority. “ABPI recognizes that the regulation is another crucial step in building a culture of data protection in Brazil and that the autarchy is taking effectively relevant measures for popular participation within this process”, said the lawyer.
The first point highlighted by ABPI refers to the application of sanctions involving the processing of personal data. Barboza Pereira pointed out that “while the regulation provides objective criteria for sanctions for medium and serious offenses, the same does not occur with light sanctions. Minor offenses will not occur in practice because the regulation defines them in a residual manner only, as they are those that do not involve large-scale processing of personal data or do not significantly affect the fundamental rights of the owner,” he stated. “We believe this part needs to be better defined.”
ABPI pointed out another issue, concerning the payment of the fine sanction, provided for in the regulation within 30 days of its application. “Considering the maximum value of the simple fine, which can reach up to R$ 50 million, an effort to exempt interest on late payment and regulatory fines and some mechanism for the installment of the amount would be reasonable”, explained Barboza Pereira. According to him, the possibility of a payment in up to six monthly installments, plus correction and interest of 1% per month, is already provided in article 916 of the CPC (Brazilian Civil Procedure Code).
The last point highlighted by ABPI concerns the replacement of the dosimetry methodology of the fine sanction, or replacement by another, in cases of damage to the proportionality between the seriousness of the offense and the intensity of the sanction. “This decision obviously needs to be substantiated and, on the other hand, the regulation itself emphasizes that the decision will observe convenience and opportunity criteria, which brings certain legal uncertainty regarding the dosimetry and application of sanctions that the regulation aims to guarantee and establish”, explains Barboza Pereira. “There is a need for more clarity in the removal and replacement of sanctions by the ANPD, with a little more wording within the regulation”.
