The rapid technological evolution of recent decades has provided numerous opportunities, but it has also raised significant challenges regarding privacy and the protection of personal data.
In this scenario, the role of lawyers becomes crucial in guaranteeing the defense of individual rights against the misuse and unauthorized use of personal information by technology.
In this article, we will address the main legal challenges related to privacy violations and the misuse of personal information by technology, offering relevant guidance for lawyers working in this field and constantly evolving, as well as those seeking to work in this area.
We will explore the legal and regulatory frameworks, with a special focus on the General Data Protection Law (LGPD) in Brazil, discussing the obligations of organizations and the rights of individuals regarding the protection of their personal information.
Furthermore, we will highlight the lawyer's role on different fronts, from advising on legal compliance to seeking redress in cases of privacy violations.
The Right to Privacy
Article 5 of the Constitution of the Federative Republic of Brazil enshrines a vast array of fundamental rights and guarantees, which enjoy maximum protection, prohibiting any possibility of their violation, among which is the right to privacy.
The Right to Privacy is a Fundamental Right, enshrined in the Federal Constitution, located in article 5, items X, XI and XII, and includes the right to intimacy, private life, honor and image, distinct and autonomously considered rights, as follows:
Article 5. All are equal before the law, without distinction of any kind, guaranteeing to Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property, under the following terms:
(...)
X – the intimacy, private life, honor and image of people are inviolable, ensuring the right to compensation for material or moral damage resulting from their violation;
XI – the home is the inviolable asylum of the individual, no one may enter it without the consent of the resident, except in cases of flagrant crime or disaster, or to provide assistance, or, during the day, by judicial order; (See Law No. 13.105, of 2015) (Effective date)
XII – The secrecy of correspondence and telegraphic, data, and telephone communications is inviolable, except, in the latter case, by court order, in the circumstances and in the manner established by law for the purposes of criminal investigation or criminal procedural instruction; (See Law No. 9.296 of 1996)
The right to privacy is a fundamental principle that protects the freedom and individual autonomy of people in relation to their personal information, activities, and personal relationships. It is based on the idea that each individual has the right to control access to, use of, and disclosure of their private information.
The aspects mentioned are protected by laws and regulations in different countries, which establish limits for the collection, storage, and use of personal information by governments, companies, and other organizations.
Furthermore, the right to privacy is recognized as a human right in various international declarations and conventions, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
It is also protected by specific national laws, such as data protection laws and professional secrecy laws.
The Use of Personal Information by Technology
In the current context, with the advancement of technology and the proliferation of digital devices, new challenges have emerged for the protection of privacy.
Issues such as mass data collection, government surveillance, the use of data analysis algorithms, and online privacy have generated debates and demanded updates to privacy protection laws and policies.
The widespread use of personal data by state and private organizations, through advanced information technologies, presents new challenges to the right to privacy.
The combination of various automated techniques allows for the acquisition of sensitive information about citizens, which can then be used to inform economic, political, and social decision-making.
Thus, there is a great invasion of privacy occurring in the present day, due to the constant growth of information channels, whether through various emerging technological resources or through inefficient oversight of public agencies' actions.
Accountability for the Use of Personal Information
The increasing exposure that information technology generates in the lives of each individual demands a re-evaluation of the constitutional right to privacy.
It is up to the citizen alone to choose whether or not to tell their story, revealing their intimacy and private life.
Therefore, public bodies have an obligation to protect and prevent any violations, except when there is some relativization by the current legislation itself, of the rights to privacy and inviolability of each citizen.
Many countries have specific data protection laws that establish the rights and responsibilities of the parties involved in the processing of personal information.
These laws generally require organizations to obtain appropriate consent to collect and use personal data, as well as imposing obligations regarding security and notification of data breaches.
In Brazil, the accountability of agents for the improper and unauthorized use of personal information is regulated by the General Data Protection Law (LGPD), which came into effect in September 2020. The LGPD establishes guidelines and obligations for the protection of personal data and provides for sanctions in case of non-compliance.
The General Data Protection Law provides for the application of administrative sanctions by the National Data Protection Authority (ANPD), which is the body responsible for overseeing and enforcing the law. Sanctions may include warnings and fines, depending on the specific case.
In addition to administrative sanctions, the LGPD (Brazilian General Data Protection Law) also provides for the possibility of legal action for moral or material damages caused by the misuse of personal data.
In the criminal sphere, the improper and unauthorized use of personal information can be classified as crimes under the Brazilian Penal Code, such as unauthorized access to information systems, violation of professional secrecy, and even crimes against honor and privacy.
The Role of the Lawyer
A lawyer specializing in privacy and data protection law aims to protect individuals' rights regarding their privacy and personal information.
In this context, a lawyer can provide advice to ensure that data collection, use, and storage practices comply with applicable legislation, such as the LGPD in Brazil, as well as assist in drafting privacy policies and terms of use.
In the event of a privacy breach or misuse of personal information, a lawyer can assist in identifying the damages suffered by the affected individuals and in seeking compensation through legal action.
This may involve analyzing moral damages, material damages, and other types of losses resulting from the violation.
A lawyer specializing in digital and cyber law can work on analyzing cybercrimes, online privacy breaches, unauthorized tracking, phishing , and other issues, seeking to hold those involved accountable and protect clients' rights.
Finally, a lawyer can assist in reviewing and negotiating contracts and agreements related to the use of personal information, such as software license agreements, terms of service, and data processing agreements.
The goal is to ensure that individuals' right to privacy is properly protected and that the terms of the contract are fair and balanced.
References
Silva, Danilo Alves. Understand what the right to privacy is and why it is important. Aurum, November 2022.
Araújo, Lucimara Brandão Reis. The privacy of the human person as a Constitutional Right. Jus, September 2017.
Article 5 of the Federal Constitution.
Hirata, Alessandro. Right to privacy. Legal Encyclopedia of PUCSP, April 2017.
