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Brazil’s Data Protection Law Will Be Effective After All, But Enforcement Provisions Delayed Until August 2021

In a major plot twist over the last few days, Brazil’s new General Data Protection Law (Lei Geral de Proteção de Dados Pessoais) – Law No. 13,709/2018 (LGPD) will take effect in two short weeks, after a last-minute decision not to delay its rollout.

The Background: A Very Brief Overview of the LGPD

The LGPD is similar to the EU’s General Data Protection Regulation (GDPR), applying data protection obligations to companies processing personal data regarding Brazilian residents. Among other requirements, the LGPD requires certain legal bases for processing data and provides Brazilian residents with many enumerated rights over their personal data. For a helpful overview of the LGPD’s provisions, including the individual rights, legal bases for processing, and sanctions as enumerated in the legislation, see GT Alert, 6 Months Until Brazil’s LGPD Takes Effect – Are You Ready?

The Plot: A Uniquely Brazilian Process

The timeline of the LGPD’s implementation has been in flux for months. Originally, per the terms of the statutory text, the LGPD was supposed to come into force August 16, 2020. In the wake of the COVID-19 pandemic, however, both the Brazilian Congress and President Jair Bolsonaro moved to delay the rollout of the LGPD. When Congressional efforts faltered, President Bolsonaro himself issued the equivalent of an executive order on April 29, 2020, that delayed the rollout of the LGPD. The president’s provisional measure (PM), No. 954, delayed the LGPD effective date (from August 16, 2020, to May 3, 2021) and enforcement of those LGPD provisions addressing penalties until August 1, 2021.

However, under Brazilian law, PMs are only temporary, emergency actions that can be issued by the executive. They only last for 60 days, though they can be renewed once for the same time period by the National Congress of Brazil. After that, unless the National Congress enacts a PM into law, the PM expires. On June 12, the National Congress passed and President Bolsonaro signed legislation that solidified the delay of the enforcement of the LPGD’s penalties and sanctions provisions until August 1, 2021. The National Congress was slower to act, however, on enacting the overall delay to the effective date of the LGPD (though on June 26, the National Congress extended the PM for another 60 days, giving it until August 27, 2020 to figure out a solution).

The Twist: The LGPD Is Effective Immediately

For the last couple of months, the National Congress has been attempting to land on a date for the LGPD’s effective date. As recently as August 25, Brazil’s Chamber of Deputies (the lower house of the National Congress) approved a postponement until December 31, 2020. The following day, on August 26, however, the Brazilian Senate rejected that proposal, setting an immediate date of enactment of August 27, 2020. The Conversion Bill will now go to the president’s desk. According to Article 62 of the Brazilian Federal Constitution, the LGPD will come into force at the end of a 15-business day period, or as soon as the Conversion Bill is sanctioned or vetoed (or if the president takes no action).

The Sequel: Brazil’s New Data Protection Authority

On August 26, President Bolsonaro approved a regulatory structure and framework of official positions for the Brazilian Data Protection Authority, the ANPD. The ANPD will be tasked with overseeing personal data protection measures, developing relevant guidelines, investigating and enforcing the LGPD, and promoting cooperation actions with data protection authorities from other countries.

Final Thoughts

Though the LGPD’s provisions addressing penalties will not be enforced until August 1, 2021, any Brazilian resident damaged by a violation of law will be able to immediately seek remedies. Consequently, organizations processing Brazilian residents’ personal data want to make sure they are in compliance with the LGPD and pay close attention to any guidance that the ANPD issues in coming months.

Greenberg Traurig is not licensed to practice law in Brazil and does not advise on Brazilian law. Specific LGPD questions and Brazilian legal compliance issues will be referred to lawyers licensed to practice law in Brazil.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 241

TRENDING LEGAL ANALYSIS


About this Author

Kate Black Shareholder GT Law Miami SF Data, Privacy & Cybersecurity Life Sciences & Medical Technology IP Technology Licensing & Transactions
Shareholder

Kate Black’s practice focuses on data privacy, information protection, and commercial transactions in consumer technology, digital health, life sciences, and genetics. Kate provides companies with comprehensive, practical strategies for meeting their regulatory obligations while building and maintaining public trust and advancing innovative and emerging models of health care research and delivery. She’s managed every aspect of global privacy programs, including supervising privacy assessments, providing product strategy and counseling, managing complex vendor and partner agreements, and...

305-579-0500
Gretchen A. Ramos, Lawyer, Greenberg Traurig, Data, Privacy & Cybersecurity,The Cloud,Artificial Intelligence, Big Data
Shareholder

Gretchen A. Ramos is Co-Chair of the Data, Privacy & Cybersecurity Practice and focuses her practice on privacy, cybersecurity, and information management. A creative problem-solver with a long track record of success in commercial disputes, she never loses sight of the simple fact that she works in a service industry. Clients appreciate not only her legal skills, but also her direct, no-nonsense approach to client service, including her bullet-pointed emails, snapshot executive summaries, and creativity in finding ways to streamline communications for in-house counsel with dozens of other projects—and little time—on their hands.

Gretchen’s clients come from diverse industries, including technology (SaaS), health care and life sciences, consumer products, manufacturing, academic institutions, and non-profits. She provides clients with practical business advice on compliance with state and federal U.S. laws, GDPR, APEC, and other global privacy laws in relation to their external and internal privacy and security procedures, product and app development, and advertising practices. Gretchen also regularly drafts and negotiates contracts concerning data-related vendors, assists clients in assessing privacy risks in corporate transactions, and provides guidance on and conducts privacy and security assessments. She has managed dozens of data breaches, and helps clients prepare for and immediately respond to security incidents and breaches.

Gretchen works closely with her clients to manage data and leverage its value in ways to meet compliance obligations as well as deliver value to the business and instill consumer trust. Her experience working with various industries allows her to quickly assess options and risks, and guide clients, including numerous genomic data companies, in resolving complicated privacy issues.

Gretchen has litigated, mediated, and arbitrated commercial disputes, including class actions, at state and federal courts nationwide, and has tried numerous cases to verdict. Her wide-ranging litigation background allows her to advise clients on the litigation risks they face in determining how to handle data privacy issues. In addition to providing compliance advice, Gretchen defends companies facing FTC and other regulatory investigations, and individual and class action claims involving privacy, information security, and consumer protection.

Concentrations

  • EU GDPR compliance

  • Cross-border transfer mechanisms (Standard Contractual Clauses, Privacy Shield, Binding Corporate Rules), and data processing agreements

  • FTC CIDs, State Attorney General investigations

  • Behavioral advertising, automated processing and profiling

  • Security breach response and notification

  • DPIAs and addressing complicated privacy issues relating to product development

  • COPPA, HIPAA, TCPA PCI-DSS, CAN-SPAM

  • Privacy and security gap assessments

415.655.1319
Giovanni Biscardi  SHAREHOLDER Corporate Latin America Practice
Shareholder

Giovanni Biscardi focuses his practice on mergers and acquisitions, and corporate matters, including commercial and financing agreements. He assists U.S. clients in structuring their investments throughout Latin America and has a long track record of handling complex cross-border transactions for Fortune 500 companies and private equity funds. He also assists foreign individuals and entities with their investments in the United States.

Giovanni has deep experience handling legal work related to business transactions in numerous international jurisdictions, including Argentina,...

305-579-0596
Associate

Michael C. Hoosier is a data, privacy and cybersecurity attorney at Greenberg Traurig in San Francisco, where he counsels clients on how to comply with local, state, federal, and international privacy laws and regulations. Prior to joining GT, Michael worked as a litigator, with his practice split between white collar investigations and enforcement, and complex commercial litigation. Michael has represented corporate and individual clients in connection with international anti-corruption investigations, internal investigations, and in defensive postures with respect to federal regulators....

415-655-1276