Federal Union And Ceará’s Amc Sparks Debate On The Rise In Legal Demands Regarding Privacy And Protection Of Personal Data

  • Brazil
  • 09/23/2019
  • Ricardo Barretto, Juliana Ikeda, Lorena Pretti, Isabella Aragão, Camila Chicaroni and Bruna Toniolo.
  • Azevedo Sette Advogados

The Federal District´s State Attorneys’ Office filed Public Civil Suit against the Federal Union and Ceará’s AMS (Autarquia Municipal de Trânsito – Municipal Traffic, Public Services and Citizenship Authority). The object of the suit is the debate about the legality of high-definition camera surveillance systems used by enforcement agents in monitoring rooms to impose fines on drivers.
The reasons given in the suit are in regards to the fundamental constitutional rights to private and intimate life, as this type of camera monitoring system allows for the enlargement of images making it possible to see detailed scenes of the interior of vehicles, such as “women applying make-up and what clothes they are wearing”, according to the Federal District´s State Attorneys’ Office. The parties subsequently presented their defenses pleading, with basis on the Brazilian Traffic Code (CTB) and Resolution No. 471 of 2013, that the video monitoring supervision used is legal. The Regulation cited was issued by Contran (National Traffic Council) in line with its competence conferred in article 280, §2nd of the CTB. Both parties, therefore, assert the legality of their respective conduct, discarding any sub judice measures to eliminate the footage. Moreover, investigations on the cameras used for monitoring found that those devices did indeed provide clear vision of the inside of the vehicles, thus, the behavior of drivers, but limited by weather conditions and the use of tinting on windows.
In this context, on September 6th the suit was partially upheld, acknowledging there was a violation of privacy and intimacy, therefore determining the infraction camera monitoring inside the vehicles system to be excluded. This decision had national effects, determining Contran to issue a new resolution regarding the video monitoring of traffic violations, in accordance with the judicial decision, thus, taking into consideration the driver´s personality rights, their privacy and intimacy.
The question at hand, although based on constitutional guarantees, has a close relationship to the heated debates on privacy and data protection that arose with the approval of the General Data Protection Act (“LGDP”), its fundaments and principles. This has been the movement adopted by some agencies, such as the State Attorneys’ Office and Procon (Consumer Protection and Defense Program), which already use the fundaments provided for in the LGPD to base their notifications and/or petitions, even if such law has not yet entered into force and is currently in vacatio legis.
Given this stance, the legal community believes in an increase in the number of law suits, both administrative and judicial, in relation to data protection and privacy, highlighting the importance of the advent of LGPD. Aggravating this scenario is the lack of unified understanding on some issues addressed by law, which may only be resolved when the National Data Protection Authority (“ANPD”) is formed as an essential regulatory agency.
The Superior Courts have also begun to manifest themselves. Earlier this month Paulo de Tarso Sanseverino, Minister of the Superior Court of Justice (“STJ”), stressed that the LGDP will bring elements that will aggravate matters related to privacy. One of the reasons for this would be the matter of liability, addressed by articles 42 and 44, which provide for objective and joint liability of the controller and operator for the improper processing of personal data.
Another important point is that the Judiciary won’t only face challenges regarding jurisprudence and merit, but will also face technical challenges, as part of the system is still not available totally digitized, which poses a challenge to text searches and to accessibility and handling of cases which reflects the current lack of structure of the courts and related bodies.
The above mentioned Public Civil Suit, which ruled in favor of data subjects’ privacy, exemplifies the importance of the approval of the LGPD and its subsequent effects on Brazil’s judicial, political and economic scenario. The administrative and judicial cases related to the subject’s tendency to rise also demonstrates how it’s becoming increasingly important for companies to take measures to comply with the LGPD, in order to avoid sanctions imposed by public and regulatory agencies and to safeguard their reputations.
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Collaboration: intern Bruna Toniolo Lopes.

Azevedo Sette Advogados