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To ensure that consumers get greater control and protection of their personal data, on 25 May 2018, the European Unions General Assembly put the General Data Protection Regulation into effect. In August 2018, the Brazilian government approved its data protection law named Lei Geral de Proteção de Dados Pessoais (LGPD).
Although GDPR and LGPD are closely related (so much so that the LGPD has been dubbed “The Brazillian GDPR”), in purpose and mechanics there are a few key differences that separate the two. Here are some of the key differences between the two laws when it comes to scope, rights and enforcement.
Both GDPR and LGPD apply to companies that collect and process personal data belonging to the residents in the EU and Brazil respectively, irrespective of the physical presence of the company. Here is a more in-depth comparison between the two regulations:
LGPD does not explicitly state whether or not it applies to natural persons irrespective of their nationality or place of residence. However, by way of interpretation of both LGPD and the Brazilian Federal Constitution, it can be inferred that the protection under law applies to personal data of any person, irrespective of the nationality of the data subject.
Moreover, Article 3 of the LGPD provides that the law applies where
Articles 3, 4(1) Recitals 2, 14, 22-25
GDPR “applies to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data.”
With regards to extraterritorial scope, GDPR applies to organizations that are not established in the EU, but rather monitor the behaviour of individuals, as long as their behaviour takes place in the EU.
Both regulations give consumers rights relating to their personal information which they can exercise. The following section explains each right and how they differ across the two laws.
Data subjects have the right to the deletion of their personal data being processed based upon consent.
A data subject must exercise their right to deletion via express request.
Once this is done, data controllers must “immediately” collect all the data and fulfill the deletion request. If this is not possible, the controller must:
Data subjects' requests under the right to deletion must be responded to without delay and in any event within 1 month of the receipt of the request.
The deadline can be extended to 2 additional months where there is great complexity or depending on the number of requests. In any of these cases, the data subject must be notified of any such extension within one month of receiving the request, along with the reasons for the delay and the possibility of complaining with the supervisory authority.
This right requires the controller to provide the following information to the data subject when requested. The information must be provided in a clear and adequate manner.
When processing personal data for minors and adolescents, controllers must make public the information about the types of data collected, how it has been used, and the procedures for exercising one’s rights under LGPD. LGPD makes clear that any processing of personal data belonging to children and adolescents shall be done in their best interests.
This right requires the controller to provide the following information to the data subject when requested. This should be given in a concise, transparent, intelligible and easily accessible form, using plain language:
The controller must provide information necessary to ensure fair and transparent processing whether or not the personal data is collected from the data subject. This information includes the duration of data storage, the legitimate interests pursued by the controller, and the existence of the rights to access, erasure, rectification, restriction of processing, data portability and lodging a complaint with the supervisory authority.
Under LGPD, data subjects can oppose the processing carried out by the organization, based on one of the situations of waiver of consent, if there is non-compliance with LGPD.
Data subjects have the right to object to their personal data being processed. This can be done on the basis of legitimate interest or public interest.
Once this right is exercised, the controller must stop processing the individual's data, unless it demonstrates grounds that override the data subject's request.
LGPD requires controllers and processors to provide information on receipt of a data subject’s request. The information must include:
This information must be provided within 15 days from the date of the data subject’s request.
GDPR states that, when responding to an access request, a data controller must indicate the following:
LGPD grants the right to data portability through an express request and subject to commercial and industrial secrecy, pursuant to the regulation of the controlling agency. This right, however, does not include data that has already been anonymised by the controller.
GDPR defines the right to data portability as the right to send data in a “structured, commonly used, and machine-readable format.” This right may be exercised only where it is technically feasible to do so.
LGPD provides data subjects the right to correct inaccurate or out-of-date data.
This is the right of the data subject to obtain from the controller the rectification of inaccurate personal data and to have incomplete personal data completed.
Under LGPD, consumers can exercise their right to revoke their consent with regard to the processing of their data. The controller must inform the data subject about the possibility of revoking consent and the consequences of doing so.
This right applies when the accuracy of data is contested by the data subject, the processing is unlawful and the data subject opposes erasure and requests restriction. Data subjects must be informed before any such restriction is lifted.
Article 20 of the LGPD gives consumers the right to be informed about any automated decision-making, as well as the right to request that decisions be made by a natural person and restrict automated decision making.
Article 22 of the GDPR provides data subjects the right to not be subject to a decision based solely on automated processing, including profiling, that produces legal effects or similarly significantly affects them.
Both GDPR and LGPD allow monetary penalties to be issued in cases of non-compliance. However, the nature of the penalties, the amount, and who is subject to them differ.
Under the LGPD, the national authority can fine up to a total maximum of BRL 50,000,000 per infraction depending on the severity of the violation.
The GDPR has an upper cap on their monetary penalties at either: 2% of global annual turnover or €10 million, whichever is higher; or 4% of global annual turnover or €20 million, whichever is higher. This depends on the level of violation, which is decided by the member states and public authorities.
Both GDPR and LGPD obligate controllers and processors to adopt security measures to protect the personal data they are processing. LGPD specifies that the new Autoridade Nacional de Proteção de Dados (ANPD) is the federal entity responsible for issuing guidelines and enforcing data protection laws in Brazil. ANPD is empowered to release guidance on which specific security measures are to be adopted.
The LGPD requires processors and controllers to take possible technical steps to secure the personal data from any data breach. The National Authority for Protection of Data offers minimum technical standards taking into account the nature of information, characteristics of processing, and the current state of technology.
Under LGPD, controllers must notify the National Authority of any security incident that may create risk or relevant damage to data subjects within a reasonable time.
The GDPR requires organizations to take appropriate technical and organizational measures to ensure the security of the processing of personal information. These measures may include the following:
Under GDPR, organizations must notify supervisory authorities of any personal data breach that is likely to result in a risk to the rights and freedoms of natural persons without undue delay and not later than 72 hours after having become aware of the breach. The information may also be provided in phases and any delay must be accompanied by justification. The communication of the breach to data subjects, however, must take place without undue delay.
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