On 05/13, the National Data Protection Authority (ANPD) issued a recommendation to the Digital Government Office for the adaptation of the Portal Gov.Br to the General Data Protection Act (LGPD). Gov.br is a digital platform for the relationship between citizens and the Brazilian federal government.
The official communication proposed a series of guidelines related to the collection of cookies and generated numerous discussions in the data protection community, especially in view of the suggestion of using consent as a legal basis understood as appropriate for the processing.
According to the analysis made by the ANPD:
(i) First level banner: the “accept” option available in the banner cookie would not be enough. The Portal Gov.br should provide an easy access key, enabling the user to reject unnecessary cookies; (b) disable consent-based cookies by default;
(ii) Second level banner: the Cookies Policy would have generic information, which is why the Portal Gov.br should identify the legal bases used to process the information collected by cookies, according to each purpose/category of cookie, using consent as the main legal basis. The necessary cookies could be based on the Controllers Legitimate Interest;
The position adopted by the ANPD in the specific case, however, has been widely questioned by scholars on the subject, since the suggested model indicates consent as a legal basis for unnecessary cookies, while much of the data protection ecosystem, on the other hand, understands that the collection of unnecessary cookies could be based on legitimate interest. The divergence was already installed, becoming, now, of greater proportion.
It is worth mentioning that, until now, the recommendations have been issued specifically in the context of the Digital Government Office’s Portal, and such manifestation does not have the binding/mandatory character of a rule (in the broad sense of the term). They are an example of practice, an inspiration for the market. But not a legal requirement. It is therefore awaited the issuance of an orientation guide on the subject, as pointed out by the ANPD itself, which will certainly shed light on the subject.