Privacy in Brazil: overview

A Q&A guide to privacy in Brazil.

The Q&A guide gives a high-level overview of privacy rules and principles, including what national laws regulate the right to respect for private and family life and freedom of expression; to whom the rules apply and what privacy rights are granted and imposed. It also covers the jurisdictional scope of the privacy law rules and the remedies available to redress infringement.

To compare answers across multiple jurisdictions, visit the Privacy Country Q&A tool.

This article is part of the global guide to data protection. For a full list of contents, please visit www.practicallaw.com/dataprotection-guide.

Claudio R Barbosa and Pedro Vilhena, Kasznar Leonardos Advogados
Contents

Legislation

1. What national laws (if any) regulate the right to respect for private and family life and freedom of expression?

There is no single law that provides a right to respect for private and family life and freedom of expression. The Federal Constitution enacted in 1988 provides that the "privacy, honour and image" of a person are fundamental rights of any individual and are inviolable. These fundamental rights are stressed by the Civil Code, which provides that the private life of an individual is also "inviolable", using a term that is usually linked to personality rights and, therefore, allocating a powerful dimension to the privacy protection. There are also specific statutes that deal with sectorial laws including:

  • The Child and Youth Statute, to protect the image and privacy of minors.

  • General Law on Telecommunications, stressing the privacy need in the telecommunications' service.

  • The Tax Code and the Bank Secrecy Act, addressing the secrecy of financial and tax information.

Further statutes, such as the Brazilian Civil Rights Framework for the Internet (the Internet Act) and the Consumer Protection Code contain specific provisions to protect the personal data of internet users and consumers.

 
2. Who can commence proceedings to protect privacy?

There is an individual right (given to any offended party) to commence proceedings to protect privacy whenever an alleged infringement is submitted to a civil jurisdiction perspective with the aim of ceasing the infringement or establishing an indemnification of any damage caused by the infringement. Even if there is no individual claim, the public prosecutors can commence an investigation if there is evidence that a systematic privacy infringement has occurred.

As privacy violation is also a criminal offence, private criminal lawsuits must be initiated by the offended party, while public prosecutors can commence public criminal offences.

 
3. What privacy rights are granted and imposed?

There is a grey area where privacy and personality rights combine that is especially driven by the Constitutional protection that encompass in the same article "privacy, honour and image". The main privacy right is the right to intimacy and, as a consequence, any non-authorised publication (in the sense of making an information public) of a person's information is considered unlawful. The use must be broadly considered, and therefore any non-authorised use of a person's name, image, voice, communication, financial, tax or even personal information can be considered an infringement. Consequently, protection of this broad spectre of information must be considered granted and imposed.

It is important to stress that privacy is not an absolute right and must be limited and balanced against other public rights such as the information and other possible rights related to public interest. Individuals that do have a public role can face an additional burden to present evidence that the use of information was a privacy violation.

 
4. What is the jurisdictional scope of the privacy law rules?

Although the criminal jurisdiction is likely to consist of facts that occurred within the Brazilian territory, the civil jurisdictional scope is broad and privacy law can rule over facts that affect individuals, without a nationality concern, that present a connection with the Brazilian jurisdiction. For example, if there is a connection element with Brazil, the internet broadcasting of a video, without any regard to the place that the video was filmed or produced, can trigger Brazilian jurisdiction.

 
5. What remedies are available to redress the infringement of those privacy rights?

Under the civil courts, any offended party can seek protective measures to cease an infringement and can also seek material and moral indemnification. An injunction can be ordered by the judge handling the case aiming to immediately cease the infringement. The order can encompass the cessation of further broadcast or publication, as well as measures to collect materials that may be considered a material infringement. The judge can issue ex parte injunctions ordering the cessation of the infringement.

Criminal offences, depending on the alleged crime, can be prosecuted directly by a public prosecutor or on request from the offended party. There is no compensation or possible injunction related to a criminal offence.

 
6. Are there any other ways in which privacy rights can be enforced?

The possible investigation by public prosecutors about a possible lack of compliance of privacy legislation is an important means of enforcement and can be commenced by a notice from any individual to the public officials. Also, although the "notice and takedown" system was not fully adopted by the Brazilian Civil Rights Framework for the Internet, recent case law has established that this is still an alternative to trigger liability for an infringement for an internet service provider. Unauthorised sexual images from individuals must also be removed by an internet sexual provider after a simple notification. Finally, the resolution of disputes by alternate proceedings is strongly encouraged by the legal system, although it is likely to have a limited role considering situations where there is an already-established conflict between the parties.

 

Contributor profiles

Claudio R Barbosa, Partner, Co-Head of Internet Law Practice

Kasznar Leonardos Advogados

T +55 11 2122 6604
F +55 11 2122 6633
E claudio.barbosa@kasznarleonardos.com
W www.kasznarleonardos.com

Professional qualifications. Brazil, lawyer

Areas of practice. Intellectual property law; data protection law.

Non-professional qualifications. LLM in International Law, USP, 2002; LLM in Intellectual Property Law, GWU Law School, 2000; SJD in Commercial Law, USP, 2007; invited lecturer in several institutions.

Recent transactions

  • Advising companies in Brazil on implementing e-commerce, privacy policies and internal policies concerning data protection (including the leading construction material retailer chain and the leading agribusiness information company).
  • Advising a payment solutions start-up in connection with data protection issues in Brazil.
  • Reviewing the Information Security Policy of a major air carrier.

Languages. Portuguese, English, French

Professional associations/memberships

  • São Paulo Section of the Brazilian BAR Association (OAB/SP).
  • Brazilian Intellectual Property Association (ABPI).
  • International Technology Law Association (Itechlaw).
  • Centre for Studies of Law Firms (CESA).

Publications

  • From Brussels to The Hague: The Ongoing Process Towards Effective Multinational Patent Enforcement IIC.International Review of Intellectual Property and Competition Law, v 32, p 729-761, 2001.
  • Propriedade Intelectual. Introdução à Propriedade Intelectual como Informação (Intellectual Property. Introduction to Intellectual Property as Information): 1. ed. Rio de Janeiro: Elsevier, 2009.
  • As infrações de propriedade industrial e o Marco Civil da Internet (Industrial property infringement and the Internet Act): Gustavo Artese (Coord). Marco Civil da Internet. 1. Ed., São Paulo, Quartier Latin, 2015.
  • Informação e Globalização. (Information and Globalization): Alberto do Amaral Júnior (Org). Direito do Comércio Internacional. 1ed.São Paulo: Editora Juarez de Oliveira, 2002, v Único, p 35-58.
  • A proteção internacional da propriedade intelectual e aspectos incidentes no Mercosul (International protection of intellectual property and its aspects regarding Mercosur): Maristela Basso (Org). Mercosul. Seus Efeitos Jurídicos, Econômicos e Políticos nos Estados-Membros. 2ed.Porto Alegre: Livraria do Advogado, 1997, v Único, p 287-317.

Pedro Vilhena, Associate, Co-Head of Internet Law Practice

Kasznar Leonardos

T +55 11 2122 6600
F +55 11 2122 6622
E pedro.vilhena@kasznarleonardos.com
W www.kasznarleonardos.com

Professional qualifications. Brazil, lawyer

Areas of practice. Data protection law; intellectual property law.

Non-professional qualifications. LLM in International European Intellectual Property Law, CEIPI - Strasbourg University; invited lecturer in several institutions.

Recent transactions

  • Advising companies in Brazil on implementing e-commerce, privacy policies and internal policies concerning data protection (including the leading construction material retailer chain and the leading agribusiness information company).
  • Advising a payment solutions start-up in connection with data protection issues in Brazil.
  • Reviewing the Information Security Policy of a major air carrier.

Languages. Portuguese, English, French, Spanish

Professional associations/memberships

  • São Paulo Section of the Brazilian BAR Association (OAB/SP).
  • Brazilian Intellectual Property Association (ABPI).
  • International Trademark Association (INTA) - Chair of the Latin American and the Caribbean SubCommittee on Non-traditional Marks.

Publications

  • A responsabilidade civil de provedores na internet (Liability of application providers on the internet). Correio Braziliense, 26 June, 2016.
  • Companies face new challenges regarding data protection in Brazil. Global Data Hub, 1 May 2015.
  • Lessons from China. Managing IP, 30 April 2014.
  • The evolution of the Brazilian legal framework in view of major entertainment and sporting events. Intellectual Property and Entertainment Law, 1 September 2013.

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