Surprise! Brazil’s New Data Privacy Law to Take Effect Sooner than ExpectedSeptember 2, 2020
Brazil’s new data privacy law, the LGPD (Lei Geral de Proteção de Dados Pessoais), will become effective not later than September 16, 2020. The LGPD, which was passed on August 14, 2018, has an extraterritorial, multi-sectoral scope and governs the online and offline collection, use, and processing of (1) personal data in Brazil, and (2) personal data about Brazilians.
The Brazilian president, Jair Bolsonaro, enacted a temporary provisional measure to delay the LGPD’s effective date until May 3, 2021. However, this provisional measure would become permanent only with the approval of both chambers of the Brazilian National Congress prior to the measure's expiration on August 26, 2020. Although the Brazilian Chamber of Deputies approved a delayed effective date, the Brazilian Senate rejected any such delay. As a result, the provisional measure expired and the LGPD will become effective as soon as it's approved by President Bolsonaro, which can occur at the latest on September 16, 2020.
Once the LGPD is effective, private lawsuits will be permitted against companies that allegedly violate the LGPD. However, administrative sanctions resulting from violations of the LGPD still will not be permitted until August 1, 2021. Such sanctions would be imposed by the governmental authority charged with overseeing the LGPD, namely the ANPD (National Data Protection Agency). Sanctions can range from warnings to daily fines of up to two percent of a business’s revenues in Brazil for the prior financial year excluding taxes, up to a total of 50 million reais (almost $9.5 million USD) per infraction.
The acceleration of the LGPD’s effective date for private lawsuits emphasizes the need for businesses to expedite their plans to comply with the LGPD, which will apply to any “processing operation” carried out by a natural person or a public or private legal entity “irrespective of the means, the country in which its headquarters is located, or the country where the data are located,” provided that at least one of the following criteria applies: (1) the processing operation is carried out in Brazil; (2) the purpose of the processing activity is to offer or provide goods or services or the processing of data of individuals located in Brazil; or (3) the personal data being processed were collected in Brazil.
Under the LGPD, "processing" is defined as any operation carried out with personal data, and "personal data" is defined as information regarding an identified or identifiable natural person. Sensitive personal data, such as racial, ethnic, political, or religious information, receives stricter protections. As with the California Consumer Privacy Act and the EU’s General Data Protection Regulation, individuals have certain rights to their personal data under the LGPD (e.g., the right to know, the right to access, the right to deletion), and businesses have certain responsibilities, such as using only personal data they have collected for disclosed purposes and implementing safeguards to protect the security of personal data.
The acceleration of the LGPD’s effective date caught many data privacy experts by surprise. Preparing for compliance with the LGPD should now be high priority for affected businesses. If you need assistance complying with the LGPD or with other cybersecurity or data privacy laws, please contact one of our Cybersecurity & Data Privacy attorneys.