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O papel dos agentes de tratamento para exercício do direito de autodeterminação informativa do titular
Published on fevereiro 19, 2021 AUTHOR - Karim Kramel, Lawyer, PG Advogados
As novas formas de relações estabelecidas dentro do contexto da sociedade da informação com crescente utilização de tecnologias disruptivas e trânsito de dados, redefiniram o conceito de privacidade para além do direito de ser deixado só, de não sofrer interferências externas, de segredo e sigilo sob alguns aspectos mais íntimos da vida privada, passando a abranger, necessariamente, o direito de controlar o tratamento de dados pessoais.
Hoje, é cada vez mais frequente a disponibilização, pelos próprios titulares de dados pessoais, de informações sobre aspectos, sentimentos e atos que dentro da concepção clássica de privacidade seriam consideradas de natureza íntima. No contexto do moderno conceito de privacidade, o fato do titular de dados decidir expor algumas de suas informações, não caracteriza renúncia, ainda que parcial, ao seu direito à privacidade, pois ele detém o direito de controle sobre seus dados pessoais e esse é o cerne de um dos fundamentos da LGPD: a autodeterminação informativa.
O Direito à autodeterminação informativa visa garantir ao titular de dados não apenas o acesso às informações pertinentes aos tratamentos realizados com seus dados pessoais como, também, permitir que o titular estabeleça, em dadas situações limites ou mesmo oposição completa ao tratamento destes dados como forma de protegê-los.
Porém, para que o titular possa exercer esse direito de maneira mais plena possível, é fundamental que os agentes de tratamento de dados pessoais, em especial os controladores, concretizem uma série de deveres positivos (dever de fazer) ou negativos (dever de se abster de fazer) previstos na LGPD.
Não é possível, por exemplo, entender que o titular de dados está apto a exercer autodeterminação informativa se não houver, por parte dos agentes de tratamento, a devida transparência sobre as atividades de tratamento de dados pessoais. Se o titular não sabe quais dados e quais tratamentos são realizados com seus dados e para quais finalidades, estará limitado na tomada de decisões sobre a melhor forma de proteger sua privacidade.
Mas, dar a devida transparência sobre os tratamentos realizados com os dados pessoais dos titulares é apenas um dos passos que os agentes de tratamento devem dar para promover a concretização do exercício do direito de autodeterminação informativa do titular. A LGPD prevê diversos mecanismos que, uma vez observados pelos agentes de tratamento, garantem que o titular tenha a mais plena capacidade possível para exercício do direito objeto deste artigo.
Podemos mencionar como exemplos destes mecanismos, o dever de coletar o consentimento, quando a lei assim o exigir, bem como eliminar os dados quando houver revogação deste consentimento; o dever de manter a qualidade dos dados pessoais e o próprio dever de realizar a portabilidade dos dados a requerimento do titular.
Partindo dessa percepção de que o pleno exercício o direito à autodeterminação informativa pelo titular depende do cumprimento dos deveres impostos na LGPD aos agentes de tratamento, é possível notar a importância de que os agentes de tratamento conheçam e tenham plena gestão dos dados tratados no âmbito de suas atividades, pois, de outra forma, não será possível atender quaisquer dos mecanismos previstos na LGPD, obstando o exercício de direito e, consequentemente, ferindo diretamente os direitos fundamentais dos tutelados pela LGPD, quais sejam: a liberdade, privacidade e o livre desenvolvimento da personalidade da pessoa natural (dignidade da pessoa humana).
Embora o pleno exercício da autodeterminação informativa ainda tenha alguns desafios que, possivelmente, serão objeto de regulamentação pela ANPD, é possível aos agentes de tratamento buscar maior adesão possível aos mecanismos estabelecidos pela LGPD, o que necessariamente passa por, primeiro, conhecer e mapear as operações que tratam dados pessoais; escolher formas e soluções de gerenciamento dessas atividades; e planejar formas de implementar e sustentar as medidas de adequação necessárias como forma de possibilitar aos titulares maior controle possível sobre seus dados pessoais.
Bibliografia
CRAVO, D.C.; Kessler D.S.; Dresch R. F.; Direito à Portabilidade na Lei Geral de Proteção de Dados (Portabilidade de dados, definições preliminares), 1a edição, Editora Foco; Indaiatuba/SP; 2020.
EBERLIN, F. B.; Direitos da criança e na sociedade da informação; 1a edição; Ed. Revista dos Tribunais; São Paulo/SP; 2020.
MARTINI, R.; Sociedade da Informação; 1a edição, Editora Trevisan; São Paulo/SP; 2017.
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- Assess TRA CPR readiness
- Map data flows
- Manage vendor risk
- Customize DSR Request Portal
- Automate Data Subject Access Request Handling
- Secure Fulfillment of Data Access
- Automate Processing of Rectification Requests
- Automate Erasure Requests
- Automate Objection & Restriction of Processing Requests
- Continuous Monitoring & Tracking
- Automate People Data Graph
- Meet Cookie Compliance
- Monitor & Track Consent
- Assess PIPA Readiness
- Map Data Flows
- Manage Vendor Risk
- Breach Response Notification
- Customize DSR Request Portal
- Automate Data Subject Access Request Handling
- Secure Fulfillment of Data Access
- Automate Processing of Rectification Requests
- Automate Erasure Requests
- Automate Objection & Restriction of Processing Requests
- Continuous Monitoring & Tracking
- Automate People Data Graph
- Meet Cookie Compliance
- Monitor & Track Consent
- Assess Japan APPI readiness
- Map Data Flows
- Manage Vendor Risk
- Breach Response Notification
- Customize a data subject rights request portal for seamless customer care
- Automate data subject access request handling
- Secure fulfillment of data access
- Automate processing of rectification requests
- Automate erasure requests
- Automate objection and restriction of processing requests
- Continuous monitoring and tracking
- Automate People Data Graph
- Meet cookie compliance
- Monitor and track consent
- Assess Qatar DPL readiness
- Map data flows
- Manage vendor risk
- Breach Response Notification
- Customize a data subject rights request portal for seamless customer care
- Automate data subject access request handling
- Secure fulfillment of data access
- Automate processing of rectification requests
- Automate erasure requests
- Automate objection and restriction of processing requests
- Continuous monitoring and tracking
- Automate People Data Graph
- Meet cookie compliance
- Monitor and track consent
- Assess Bahrain PDPL readiness
- Map data flows
- Manage vendor risk
- Breach Response Notification
- Privacy Policy & Notice Management
- Customize a data subject rights request portal for seamless customer care
- Automate data subject access request handling
- Secure fulfillment of data access
- Automate processing of rectification requests
- Automate erasure requests
- Automate objection and restriction of processing requests
- Continuous monitoring and tracking
- Automate People Data Graph
- Meet cookie compliance
- Monitor and track consent
- Assess Bahrain PDPL readiness
- Map data flows
- Manage vendor risk
- Breach Response Notification
- Privacy Policy & Notice Management
- Customize a data subject rights request portal for seamless customer care
- Automate data subject access request handling
- Secure fulfillment of data access
- Automate processing of rectification requests
- Automate erasure requests
- Automate objection and restriction of processing requests
- Continuous monitoring and tracking
- Automate People Data Graph
- Meet cookie compliance
- Monitor and track consent
- Assess Bahrain PDPL readiness
- Map data flows
- Manage vendor risk
- Breach Response Notification
- Privacy Policy & Notice Management
BackSnowflake is a cloud based data warehouse that allows organizations to run large scale data analytics projects to uncover business insights, run or train machine learning models, and modernize their data infrastructure.
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The Amazon S3 (Simple Storage Service) is a web-service which allows for scalable storage solutions for data archival, backup, and recovery purposes.
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Microsoft O365 is the ubiquitous productivity suite for every business worker. Users rely on Office products such as OneDrive and SharePoint to collaborate with their co-workers.
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Organizations want to migrate their on-premises data to cloud data stores to take advantage of scale and flexibility while reducing operational cost of managing on-premises infrastructure. However, due to privacy regulations such as GDPR, CCPA administrators have to ensure that data is migrated in compliance with these laws.
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Protecting sensitive content is a priority for all organizations, however, due to volume of sensitive content and
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While data aids in business decision making, global privacy regulations such as GDPR, CPRA require organization to identify personal & sensitive data & use only for its intended purpose and implement adequate protection.
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Securiti enables organizations to meet multiple regulations around the world and helps with compliance requirements through AI-driven PI data discovery, DSR automation, documented accountability, enhanced visibility into data processing activities and AI-driven process automation.
Securiti is a complete PrivacyOps Solution.
View all solutionsThe California Consumer Privacy Act (CCPA) was signed into law on June 28, 2018 and is scheduled to come into effect on January 01, 2020. Often compared to GDPR, CCPA protects consumers from mismanagement of their personal data and gives the consumer control over what data is collected, processed, shared or sold.
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The California Privacy Rights Act (CPRA) will take effect from January 1, 2023, and will apply to personal information collected on or after January 1, 2022. Enforcement of the CPRA will start six months later (July 1, 2023). The CPRA builds upon the CCPA, strengthening user privacy for California residents.
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The EU General Data Protection Regulation (GDPR) came into effect on May 25, 2018 and changed the global privacy landscape. It has broadened the definition of processing activities and personal data, impacting companies worldwide, and has tightened the rules to obtain consent before processing information.
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The Lei Geral de Proteção de Dados (LGPD) is modeled with similarities to the General European Data Protection Regulation (GDPR) and contains sixty-five articles. It was approved on August 14, 2018 and its validity has undergone several changes, the last relevant fact being MPV 959. LGPD is in effect since September 18, 2020. The sanctions by the ANPD (Brazilian Data Protection Authority) were postponed to August 2021. The LGPD allows people have more rights over their data and expects organizations to comply with their regulations or face heavy penalties or fines.
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China has complex data protection and data security regime, however, the following are three main laws that primarily cover China’s data protection and data security regulatory framework. These laws are:
Frameworks
The government of New Zealand has recently replaced its long-existing Privacy Act of 1993 with a modernized version, the Privacy Act 2020. The New Zealand Privacy Act 2020 (NZPA) will take effect from December 1, 2020.
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The Personal Data Protection Act, B.E. 2562 (2019) ('PDPA') is Thailand's first consolidated data protection law, which was published in the Thai Government Gazette on 27 May 2019. This law was said to go into effect on 27 May 2020. However, in May 2020, the Thai Cabinet through a Royal Decree has deferred the enforcement of certain data protection provisions of the PDPA until 31 May 2021.
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In order to protect the data of individuals in South Africa, Parliament assented to the Protection of Personal Information Act (POPIA) on 19th November 2013. The commencement date of section 1, Part A of Chapter 5, section 112 and section 113 was 11 April 2014. The commencement date of the remaining sections (excluding section 110 and 114(4)) was 1st July 2020. As per the Regulator’s Operational Readiness Plan the Regulator will be able to take enforcement actions for the violation of POPIA by July 1st 2021.
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The DIFC Data Protection Law, 2020 lays down regulations regarding the collection, disclosure and processing of personal data in the DIFC, a special economic zone in Dubai. It also gives rights to individuals whom the personal data relates to and provides power to the Commissioner of Data Protection to enforce the law, enact regulations and approve industry-wide Codes of Conduct.
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The Australia Privacy Act 1988 (Privacy Act) was enacted to protect the privacy of data subjects and regulate how Australian agencies and organizations with an annual turnover of more than $3 million handle their customers’ personal information.
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Singapore’s Personal Data Protection Act (PDPA) comprises various provisions governing the collection, disclosure, use, and care of personal data. It recognizes the rights of individuals to have more control over their personal data and the needs of organizations to collect, use, or disclose personal data for legitimate and reasonable purposes.
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On April 13, 2000, the Personal Information Protection and Electronic Documents Act (PIPEDA) received Royal Assent. It came into force in stages, beginning on January 1, 2001. PIPEDA came fully into effect on January 1, 2004. The legislation applies to organizations that collect, use or disclose personal information in the course of commercial activities.
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After the invalidation of Privacy Shield, many companies are relying on the SCCs in order to continue transferring data of EU citizens to companies based in countries who are not deemed adequate for data transfer.
After the CJEU judgement, it is clear that these companies have to conduct Risk Assessments with the data recipients in these countries in order to ensure they have enough controls to mitigate any potential data or regulatory risk.
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On 2nd March, 2019, the Department of Health—Abu Dhabi (DoH), launched the Abu Dhabi Healthcare Information and Cyber Security (ADHICS) Standard. This is the first standard that aims to provide healthcare professionals and entities a comprehensive guide to the regulation of healthcare data in Abu Dhabi. This law ensures the highest levels of privacy and security of patients’ data, in line with international standards, is maintained.
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On January 31, 2020, the government of Saudi Arabia issued the Executive Regulations to the Saudi E-Commerce Law 2019 (“ECL”) that was in effect since October 2019. The Executive Regulations together with the ECL (“Law”) aim to protect consumers’ personal data by requiring organizations to take appropriate technical and administrative measures.
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Turkey was one of the first countries to start the trend of legislating data protection. Turkey published “Law on the Protection of Personal Data No. 6698 (LPPD) covering personal data protection on April 07, 2016.” The LPPD is based on the European Union Data Protection Directive 95/46/EC and has several similarities with the GDPR. It aims to give data subjects’ control over their personal data and outlines obligations that organizations and individuals dealing with personal data must comply with. The LPPD has also provided comprehensive guidelines for the transfer of personal data to the third parties.
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In December 2019, India, following several other countries' footsteps on the privacy laws' developments, introduced the Personal Data Protection Bill (PDPB) to regulate the processing, collection, and storage of personal data.
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The Irish Data Protection Act, 2018 (Irish DPA) implements the General Data Protection Regulation (GDPR) and transposes the European Union Law Enforcement Directive in Ireland. Since it incorporates most of the provisions from the GDPR and the Law Enforcement Directive with limited additions and deletions as per the national law, it is considered to be the principal data protection legislation in Ireland.
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The Personal Data (Privacy) Ordinance (Cap. 486) as amended in 2012 (the “PDPO) is the primary legislation in Hong Kong which was enacted to protect the privacy of individuals’ personal data, and regulate the collection, holding, processing, disclosure, or use of personal data by the organizations.. The Data Protection Principles ( the “DPPs or DPP ''), which are contained in Schedule 1 to the PDPO, outline how entities should collect, handle, disclose, and use personal data.
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In 2012, the Philippines passed the comprehensive privacy law, Data Privacy Act 2012 Republic Act. No, 10173 (the "DPA"). The DPA recognizes the rights of individuals to have more control over their personal data while ensuring a free flow of information to promote innovation and growth.
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The United Arab Emirates (UAE) has a Federal Telecommunication Law ( Federal Law) which requires that a company must hold a license in order to provide public communications services and operate public telecommunication networks. Under this Federal Law, a Telecommunication Regulatory Authority (TRA) was established which regulates the telecommunication sector in the UAE.
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South Korea has a general law and several special laws that cover data protection and individuals' privacy. South Korea's data protection regime is considered one of the strictest data protection regimes owing to its notification requirements, opt-in consent, extensive data subject rights, mandatory data breach notifications, and heavy sanctions in case of non-compliance.
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The Act on the Protection of Personal Information (the "APPI'') regulates personal related information and applies to any Personal Information Controller (the “PIC''), that is a person or entity providing personal related information for use in business in Japan. The APPI also applies to the foreign PICs which handle personal information of data subjects (“principals”) in Japan for the purpose of supplying goods or services to those persons.
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Qatar is the first gulf country that has passed a national data privacy law and has paved the way for all other gulf countries to follow suit. In 2016, Qatar enacted Law no. 13 Concerning Personal Data Protection (the “DPL”). Qatar became the first Gulf Cooperation Council (GCC) member state to issue an “European Style” applicable data protection law. The DPL establishes a certain degree of personal data protection, provides data subject rights, and prescribes the guidelines for organizations for the processing of personal data within Qatar.
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Bahrain has become a part of the countries that have enacted a data privacy regulation to protect the rights of their residents. On 12 July 2018, Bahrain drafted its law on data protection regulation, Law No. 30. This then went on to go into effect on the 1st of August 2019 as the Bahrain Personal Data Protection Law (PDPL) and supersedes all other laws. The PDPL recognizes the rights of individuals to have more control over their personal data and the needs of organizations to collect, use, or disclose personal data for legitimate purposes.
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After the Success of the California Consumer Privacy Act (CCPA) in California, Virginia is now following the same path. The Virginia Consumer Data Protection Act (VCDPA) has been passed and will go into effect on 1st of January 2023. This law is closely designed after the newer California Privacy Rights Act (CPRA) but with a few significant and important differences.
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After the VCDPA in Virginia, Colorado has closely followed suit and has passed their own comprehensive data privacy law to protect the personal data of the residents of Colorado.The Colorado Privacy Act (CPA) was signed into law on the 8th of July, 2021 and has been modelled closely after the VCDPA.
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