Provisional Measure (“MP”) No. 1,124, signed by the President of the Republic, Jair Bolsonaro, was published in the Federal Official Gazette of Brazil on June 14, transforming the Brazilian National Data Protection Authority (“ANPD”) into an autonomous entity of special nature.
Until the publication of the MP, the legal nature of the ANPD was of “federal public administration body, part of the Presidency of the Republic”. The possibility of changing to an autonomous entity was already provided for in the Brazilian General Data Protection Law (“LGPD”), according to art. 55, Paragraph 1 “The legal nature of the ANPD is transitory and may be transformed by the Executive Branch into an entity of the indirect federal public administration, subject to a special autonomous regime and linked to the Presidency of the Republic.” In view of such change, this provision was repealed by the MP.
The MP will now be discussed by the National Congress within 60 days, so the Congress can either approve it or extend its validity for another 60 days.
In any case, the transformation promises major changes, since the ANPD will be on par with other entities, such as regulatory agencies and the Central Bank of Brazil. In this sense, the ANPD will be incorporated under internal public law, which will grant it legal capacity to claim collective rights in a broad and diffuse sense, and it will be able to file public civil actions (Article 5, item IV, Law No. 7.347/85). The ANPD will also be able to request provisional measures, such as the suspension of personal data processing activities, claim collective compensation for pain and suffering, as well as enforce compliance with legal measures, for example.
Finally, it is worth mentioning that this change not only preserves the ANPD administrative structure, autonomy and competence, but will also reinforce the institutional stability of its board of directors and contribute to Brazil’s image of a country with a proper level of personal data protection, due to the existence of an independent authority.
Demarest’s Privacy, Technology and Cybersecurity team is available to provide any further clarifications that may be necessary.
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Check our timeline to keep up with the main actions promoted by the ANPD. Read the updated version of June 2022 here.
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