The Protection of Personal Data as a fundamental right and the virtuous cycle of privacy

Constitutional Amendment No. 115, enacted on February 10th, 2022, altered the Constitution of the Federative Republic of Brazil in order to include, in its article 5, the protection of personal data on the list of fundamental rights and guarantees. The fundamental constitutional right of the individual guaranteed by the Constitution is inalienable and constitutes an immutable clause and cannot be changed. The approval of the aforementioned constitutional amendment contemplates the protection of personal data, including in digital media, as a pillar of support and effective implementation of the General Law for the Protection of Personal Data (LGPD in the Portuguese acronym), along side with the relevant performance of the National Authority for the Protection of Personal Data (ANPD in the Portuguese acronym).

EC 115/2022 also delimits the competence of the Union to legislate on the subject, being certain that the other norms shall pass through the sieve of constitutionality, strengthening society´s respectful commitment  to this fundamental right and, therefore, ensuring  greater legal certainty, in addition to bringing confidence to the country´s economic structure.

As such, sustainable economic andtechnological  developments shall be in line with the fundamental guarantees laid down in the Brazilian Constitution. Within this context, the protection of personal data and the individual privacy play the role of driving the country’s economic evolution and growth rationale, which is very positive when thinking about foreign investments.

Sustainable economic activity preserves an individual´s fundamental guarantees from their conception and throughout the business development process, which means that, in all phases of economic structuring, individual privacy and the protection of personal data  must be preserved.

The right to privacy and the protection of personal data are related to natural persons´s dignity, especially in this current context of disruptive economy and technology. However, safeguarding this guarantee encourages the effectiveness and concrete insertion of the protection of personal data at the heart of each and very economic activity in the country. The LGPD strengthens the framework of governance of personal data in the development of economic activities. In this scenario, guidelines, principles, and rules were established by law in order to implement the right to privacy, as a fundamental principle to those who process personal data for economic purposes in their daily routine.

That is where the challenge of privacy occurs: inserting a culture of personal data protection as the central foundation of the entire chain of any economic activity. Data governance structures and systematizes this issue, but it is necessary to move forward and bring a rationale of privacy to the daily reality of organizations and, more than that, it is important to inform and make society aware of the ecosystem for processing personal data and all corresponding rights.

Constitutionalizing the protection of personal data is essential. Nevertheless, it is necessary to educate, sensitize and inform those holding this right about its importance, which is guaranteed not only by a specific law, but also by the Brazilian Constitution. There is  no use in holding constitutional rights and guarantees if we are not aware of them or do not  know  how to make proper use of them. In this vein, the culture of privacy is crucial to guaranteeing the effectiveness of this right. Society needs to be engaged and active. The direct holders of personal data must know their fundamental rights so that they can exercise them.

The principle of informative self-determination brings exactly this guideline: the individual has the freedom and the right to decide on the potential treatment of their own personal data, based on information previously made available to the data subject. Thus, more and more companies are striving for the disclosure of clear and objective information about data holder´s  rights  by means of privacy notices, in addition to adopting a type of data governance that is capable of complying with the guidelines and requirements of the LGPD.

However, the issue of privacy does not only translate into  companies´s obligation regarding the processing of personal data, but a duty of  of society as a whole. It is essential to know your rights, as well as seek information about them and, above all, to demand the effective constitutional guarantee of their protection as a fundamental right, thus promoting the virtuous cycle of privacy.

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