The public hearings that are debating the General Law for Data Protection ("LGPD"), Law Nº 13.709/2018, and its amendments introduced by Provisional Act nº 869/2018 ("MP nº 869/2018") have started on April, 9th, 2019.
The working plan presented by the rapporteur, the representative Orlando Silva (PCdoB-SP) and by the chairman of the Joint Committee, Senator Eduardo Gomes (MDB-TO), reinforced the need for an active participation of all members of the collegiate to carry out rapid work, in view of the short time available. He also proposed the holding of some administrative meetings, convened in advance and with specific guidelines, for discussion of the main issues dealt with in MP nº 869/2018. In addition to the working and deliberative meetings, the working method provides for four (4) Public Hearings, with condensed themes, so that experts on the subject, both Public Administration and the private sector, can be heard. Finally, other steps may be taken, as deemed necessary by the Presidency, Rapporteur and Plenary.
The first Public Hearing on MP nº 869/2018 happened on April 9, 2019 and had the following theme: "National Data Protection Authority: institutional design and governance models, competencies and attributions for a National Protection of Data Policy". The participants discussed the institutional model of the ANPD, its powers and attributions, the role of the National Council for the Protection of Personal Data and Privacy, possible adjustments in the attributions and financing sources necessary for the proper operation of the agency.
The second Public Hearing will be held the same week, on April 10, 2019, and will have the theme: "Data processing by the Public Administration and Protection of data related to defense and public safety". The objective is to discuss flexibility of transfer and sharing of data to private entities when controlled by the Public Authorities and suppression of the possibility of the ANPD to express opinions on the processing of data carried out by security entities and to request impact reports on protection.
Next, the third Public Hearing will take place on April 16, 2019 and will have as its theme: "Data processing in the private sector, automated processing and the Right to Explanation". It is proposed to discuss the rights of holders, duties of controllers and operators, change of the concept of "person in charge" and the change made in the right of review in automated decisions, which has removed the obligation that the data holder can appeal to a natural person.
The fourth and last Public Hearing will take place on April 17, 2019 and its theme will be: "Sharing and Data Protection in Health and Scientific Research". The intention is to discuss the changes in communication of health data "for the adequate provision of supplementary health services" and withdrawal of the safeguard that specific regulations on scientific research data can be implemented, taking into account, in both cases, freedom of initiative and protection of sensitive data.
Finally, the Deliberative Session will be held on April 23, 2019, for presentation, discussion and voting on the report. In addition, despite the closure of the deadline for deliberation of the Provisional Act under discussion, the parliamentarians extended the deliberation period for another 60 (sixty) days, pursuant to Article 10 of Resolution nº 1 of 2002 - CN and §3 of Article 62 of the Brazilian Federal Constitution. Thus, validity of MP nº 869/2018 should extend until June 3, 2019, when the legislative process should have been finalized.
Although the time schedule is quite lean, the working plan presents viable solutions for a profitable discussion on the subject, with qualified and diversified experts, inspiring optimism for treatment of the issue within the stipulated timeframe.
How long have they gone so far?
In a retrospective analysis of the main facts that led us to hold the Public Hearings to discuss MP No. 869/2018, it is important to remember that the LGPD was sanctioned in August 2018 by the then President of the Republic, Michel Temer, with significant vetoes to the original project. Among the vetoes, the main one was related to the provision that created the National Data Protection Authority ("ANPD"), a regulatory, interpreting and inspection agency, which was introduced in the LGPD project to, among other purposes, apply sanctions in the cases of non-compliance with the personal data protection standards. The veto was justified in a supposedly legally-flawed initiative in proposing the issue, since the creation of the agency, by generating new expenditures in the budget, would be a prerogative of the Executive Power.
However, at the end of the term of office of the former government, the Presidency of the Republic, through legislative consultant Igor de Freitas, proposed MP nº 869/2018, which created and structured the ANPD in a way that was different from that originally provided for in the LGPD, among other changes. The most relevant changes were: i) creation of the authority without increase of expenses, that is, with the use of positions and functions of agencies and entities of the Executive brach; ii) transformation of the independent quasi-governmental entity into a Federal Public Administration agency, part of the Presidency of the Republic, with technical autonomy, but without financial guarantee (this point – it is worth of emphasizing - is the source of most criticism of the Provisional Act); iii) change in the LGPD vacatio legis to August 2020; iv) modification of data processing rules by the Government; v) inclusion of one more possibility of communication permission or shared use between controllers of sensitive personal data, besides the portability of data consented by the holder, that is, the need for communication for the adequate delivery of supplementary health services; and vi) removal of the obligation that the communication or the shared use of personal data from a legal person governed by public law to a legal entity of private law be informed to the ANPD.
The Joint Committee to analyze MP nº 869/2018 was then appointed by the National Congress on February 15, 2019, and duly established on March 27, 2019, when Senator Eduardo Gomes (MDB-TO) was appointed Chairman of the Committee and representative Orlando Silva (PCdoB - SP) as its rapporteur. It should be noted that in the first round of review, one hundred and seventy-six (176) amendments to the text of MP nº 869/2018 were presented by representatives and senators. Although in favor of approving this act as soon as possible, the rapporteur has tried to persuade his peers to change the Executive’s proposal of the creation of the ANPD, since he opposes the linking of the agency to the Presidency of the Republic, arguing that the organization should be established with administrative autonomy in relation to the government, along the lines of regulatory agencies, such as Anatel.
Thus, the parliamentarian suggests that the issue be negotiated with the Presidency of the Republic, so that the ANPD functions as a regulatory and inspection agency, with full autonomy and authority, ensuring the effectiveness of the LGPD in the international scenario. It should be noted that the rapporteur believes that Brazil may face difficulties in foreign trade relations if it insists on the model dependent on the agency presented in MP nº 869/2018, and may even create an impediment to Brazils entry into the OECD (Organization for Economic Cooperation and Development), in which participate 36 countries that accept the principles of representative democracy and the market economy.
The Joint Committee is made up of 26 senators (13 members and 13 alternates) and 26 representatives (13 members and 13 representatives), and some positions remain vacant to date. Among its participants, it is worth highlighting the presence of some holders of opinions that may be relevant to the future of MP nº 869/2018. As already seen, the rapporteur, Representative Orlando Silva, has a liberal bias regarding organization of the ANPD, defending its administrative autonomy along the lines of the proposal that was vetoed in the LGPD by former President Michel Temer.
The very President of the Committee, Eduardo Gomes, proposed two amendments (161 and 162) to the text of this MP nº 869/2018, the first of which is precisely to change the administrative model of the ANPD, so that the agency is part of the indirect Federal Public Administration, submitted to a special autarchic regime and linked to the Ministry of the Economy; and the second is to set a specific date for entry into force of the LGPD on 16 August, 2020.
Other issues dealt with in regard to the amendments were the need to give more prominence to the person in charge of personal data processing (DPO) and deletion of the provision that allows the free communication of sensitive health data for the purpose of obtaining economic advantage, when necessary for the "adequate delivery of supplementary health services".
Upon start of the Public Hearings, the texts of the amendments to LGPD and to MP 869/2018 will be subject to a number of analyses and discussions so that the members of all involved sectors may contribute to maturing of the legislation on personal data privacy and protection. Now, we have to be optimistic and hope for positive results for the follow-up of data protection legislation in the country and creation of an independent and active National Authority.
São Paulo, April 10, 2019
TMT Team of Azevedo Sette Advogados
Ricardo Barretto Ferreira
Juliana Sene Ikeda
Lorena Pretti Serraglio
Vitor Koketu
Isabella Aragão