This post has been updated.
As reported by Mundie e Advogados, on July 10, 2018, Brazil’s Federal Senate approved a Data Protection Bill of Law (the “Bill”). The Bill, which is inspired by the EU General Data Protection Regulation (“GDPR”), is expected to be sent to the Brazilian President in the coming days.
As reported by Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados, the Bill establishes a comprehensive data protection regime in Brazil and imposes detailed rules for the collection, use, processing and storage of personal data, both electronic and physical.
Key requirements of the Bill include:
- National Data Protection Authority. The Bill calls for the establishment of a national data protection authority which will be responsible for regulating data protection, supervising compliance with the Bill and enforcing sanctions.
- Data Protection Officer. The Bill requires businesses to appoint a data protection officer.
- Legal Basis for Data Processing. Similar to the GDPR, the Bill provides that the processing of personal data may only be carried out where there is a legal basis for the processing, which may include, among other bases, where the processing is (1) done with the consent of the data subject; (2) necessary for compliance with a legal or regulatory obligation; (3) necessary for the fulfillment of an agreement; or (4) necessary to meet the legitimate interest of the data controller or third parties. The legal basis for data processing must be registered and documented. Processing of sensitive data (including, among other data elements, health information, biometric information and genetic data) is subject to additional restrictions.
- Consent Requirements. Where consent of the data subject is relied upon for processing personal data, consent must be provided in advance and must be free, informed and unequivocal, and provided for a specific purpose. Data subjects may revoke consent at any time.
- Data Breach Notification. The Bill requires notification of data breaches to the data protection authority and, in some circumstances, to affected data subjects.
- Privacy by Design and Privacy Impact Assessments. The Bill requires organizations to adopt data protection measures as part of the creation of new products or technologies. The data protection authority will be empowered to require a privacy impact assessment in certain circumstances.
- Data Transfer Restrictions. The Bill places restrictions on cross-border transfers of personal data. Such transfers are allowed (1) to countries deemed by the data protection authority to provide an adequate level of data protection and (2) where effectuated using standard contractual clauses or other mechanisms approved by the data protection authority.
Noncompliance with the Bill can result in fines of up to two percent of gross sales, limited to 50 million reias (approximately USD 12.9 million) per violation. The Bill will take effect 18 months after it is published in Brazil’s Federal Gazette.
Update: The Bill was signed into law in mid-August and is expected to take effect in early 2020.