06 May CONGRESSMEN AND SENATORS QUESTION THE LGPD’S POSTPONEMENT PROPOSED BY MP 959/2020
On April 5, 2020 ended the deadline for the submission of amendments to the Provisional Measure No. 959/2020 (“MP 959/2020”), an amount of one hundred and twenty-six (126) amendments were submitted by Congressmen and Senators. Forty-four (44) amendments exclusively about data protection.
The MP’s 959/2020 main topic is the management of payments of the monthly emergency benefit to low-income workers, due to the COVID-19 pandemic. However, its last article provides for the modification of the Brazilian General Data Protection Regulation (“LGPD”), postponing its entry into force to May 3, 2021.
According to Senator Paulo Paim, who proposed Amendment No. 11, the last article of the provisional measure represents an example of a “legislative tortoise”, which means, a specific rule that has nothing to do with the instrument’s main purpose.
In Amendment No. 123, proposed by Congressmen Enio Verri, it is argued that the provision for the LGPD postponement in MP 959/2020 would violate Article 7 of Complementary Law No. 95/1998, which stipulates that normative acts should not contain an unrelated matter to its object or to it not bound by affinity, pertinence or any connection.
Among the forty-four (44) amendments submitted to MP 959/2020, thirty (30) of them aim to suppress the last article of this rule that modifies the LGPD’s entry into force date.
The amendments allegations to remove the data protection provision from the MP 959/2020 were mainly based on the following arguments:
(i) There are bills in progress at the National Congress that discuss different proposals on the LGPD provisions postponement[1], being unnecessary the agenda imposition, established by the Executive’s Provisional Measure to the Legislative;
(ii) The deadline initially provided for in the LGPD for its entry into force was of eighteen (18) months, having subsequently been postponed by another six (6) months. Currently, full enforcement of the law would begin in August 2020, that is, twenty-four (24) months from its initial publication, which is enough time for everyone to adapt to its legal regime;
(iii) While LGPD does not enter into force, the data protection regulatory framework in the sphere of the Federal Public Administration will be represented by Decree No. 10.046/2019, which creates the Citizen Database Registry[2]. Extremely contested for allowing violations of fundamental rights of Brazilian citizens – including privacy – the fact may constitute an unwanted obstacle for the country to obtain its formal recognition at the international level “as a country with an adequate level of data protection”, which may reduce the data flow to Brazil and the country’s presence in the global digital economy; and
(iv) The absence of a data protection system weakens data subjects and leaves them vulnerable to malicious acts and phishing attacks, whose authors have been taking advantage of measures to combat the COVID‑19 pandemic as baits in schemes in which the main objective is to collect personal data, which will become part of databases, without the consent or, even, the knowledge of data subjects.
It is also discussed whether the government’s real intention in publishing MP 959/2020 would be to buy time for the designation of members to the National Data Protection Authority (“ANPD”) and to the National Data Protection and Privacy Council, bodies that should already be in full operation, overseeing and providing guidance for the society as to the provisions of the LGPD.
The remaining fourteen (14) amendments, propose to: (i) maintain the LGPD’s current date of entry into force, scheduled for August this year; (ii) postpone the entry into force as provided in Bill No. 1,179/2020; and (iii) postpone only the sanctions (articles 52 to 54 of the LGPD) to May 3, 2021.
Furthermore, Amendment 86, presented by Senator Roberto Rocha, proposes to amend articles 4, 41-A and 58-B to: (i) exclude for the scope of the LGPD the processing of personal data of deceased data subjects; (ii) include that companies for the same economic group may designate a single data protection officer, subject to certain restrictions; and (iii) add competencies to the National Data Protection and Privacy Council, such as the issuance of opinions on the assessment of the adequacy of the level of protection from countries or international organizations.
In any event, it is possible to observe a larger articulation of Senators and Congressmen so that the provision for the LGPD’s postponement is deleted from the MP 959/2020.
On another front, Bill No. 1.179/2020 approved in the Federal Senate, started to be processed by Chamber of House Representatives, shortly after the government issued the provisional measure, in an urgency regime. That means that the proposal may be automatically included in the agenda for discussion and immediate voting by Representatives, which, in the current scenario, is likely to occur before MP 959/2020 obstructs the congress agenda, on its 46th day of entry into force.
[1] Access here the article that we previously published on the Blog in which we presented the different proposals under discussion in the National Congress for the postponement of the entry into force of the LGPD provisions.
[2] Access here the article we published on Decree No. 10.046/2019, which instituted the Citizen Database Registry.
This article is intended exclusively to provide information and does not contain any opinion, recommendation or legal advice from KGV Advogados concerning the matters here addressed. Copyrights are reserved to Kestener, Granja & Vieira Advogados.
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