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Source: ESTADÃO BLOGS  Fausto Macedo  Reporter | 01/10/2020 09:35

In the view of the credit bureau sector, the General Data Protection Law is positive for the country, its citizens and companies

The huge and growing volume of personal data circulating on the internet, among other media, is one of the most valuable assets in circulation in the world today.

In order to define rules for the processing of this personal data, the General Law on the Protection of Personal Data (LGPD), The new law, which came into force on September 18, is positive for the country, its citizens and companies. For citizens, because data subjects will now have more information about the processing of their personal data. For companies, because the LGPD will guide how to process this data according to criteria and rules to guarantee its ethical use, without harming people's privacy and rights. And it is equally positive for Brazil because it promotes the legal certainty needed to attract foreign investment and stimulate the development of the economy, technology and social welfare.

One of the most important contributions of the LGPD is informational self-determination, which is the right of the data subject to know who knows what about them. Through informational self-determination, the data subject can exercise real control over the accuracy of the information collected, as well as its recipients and how it is used.

Long before LGPD, As a result, credit bureaus already offered data subjects broad access to their information. The Consumer Protection Code (CDC), as well as the Positive Registry Law, contain the principles of fairness in the treatment of information, such as access or participation, integrity, security and reparation - all of which are also included in the LGPD. These principles are internationally recognized, especially in Canada, the United States and Europe, and are known as the “fair information principles”. 

The bureaus made important contributions in this regard to the law that amended the Positive data. Article 5 of the Positive Registration Law, for example, which deals with the rights of the registered person, strengthens informational self-determination in this area by guaranteeing the following rights to the registered person: cancellation or reopening of the registration, when requested; free access, regardless of justification, to the information in the databases, including credit history and score, with the database manager (GBD) being responsible for maintaining secure systems, by telephone or electronic means, for the registered person to consult the information; contesting information erroneously noted in databases and having, within ten days, its correction or cancellation in all the databases that shared the information; and being informed in advance of the identity of the manager, storage and purpose of the processing of personal data. 

With regard to data processing, Article 7 of the LGPD provides for ten legal bases or hypotheses for processing personal data, without there being any hierarchy. O credit bureau sector uses, in most of its activities, the legal basis of item X: credit protection, including in line with the Positive Registry law. The credit bureaus also deal with personal data, which is all data relating to an identified or identifiable natural or physical person. 

The ANPD is key to legal certainty in the implementation of the LGPD

In the view of the credit sector, the entry into force of the LGPD without the full functioning of the National Personal Data Protection Authority (ANPD) creates legal uncertainty regarding the proper application of the law. On August 27 of this year, Decree 10,474/2020 was published in the Federal Official Gazette, approving the ANPD's regimental structure, a body linked to the Presidency of the Republic, as well as the list of commissioned positions and functions of trust. Now, the Presidency of the Republic needs to appoint the five members of the ANPD's Board of Directors to be examined and approved by the Federal Senate before taking office. 

The ANPD is fundamental because LGPD has numerous provisions that require regulation or guidance from the competent authority. And since the LGPD involves all sectors and segments of the Brazilian economy, it is recommended that the ANPD be run by a Board of Directors and a staff with ample availability to know the specifics of each segment and technical expertise, especially from sectors accustomed to the use of personal data, data science, data governance, information security, the development of the digital economy and digital transformation, as well as knowledge of regulatory convergence, certifications and international best practices. 

In addition, as privacy and personal data protection issues are new disciplines in Brazil, the technical capacity of the ANPD is also relevant to the Authority's regulatory and structural work. So too is the broad participation of all sectors of society, especially those directly affected by the new regulatory framework. The ANPD is also essential for legal certainty in terms of defining the best interpretation of the rules with a view to maintaining a balance between the protection of personal data subjects and economic and social development. Without its strategic and educational guidance, the multiple interpretations from other public spheres will tend to cause legal uncertainty and thousands of lawsuits, which could be settled in a matter of time.

 legal uncertainty and thousands of lawsuits, most of which could have been resolved by prior instructions and guidance from the competent authority. 

The implementation and standardization of the issue in the country must be orchestrated, under the coordination of the ANPD, and as a result of broad and open processes of public consultations and regulatory impact analyses, avoiding monocratic and one-off decisions, without initially seeking to effectively adapt to the current situation. LGPD. The organized private sector suggests the regulatory debate and proposes to collaborate actively in drawing up guidelines, regulatory guidelines and educational work. Dialogue with the government and other organized sectors is and will continue to be a priority for the private sector in the search for the best results for society.