The importance of personal data protection as a fundamental right

Recently, we have observed the emergence of several regulations guaranteeing data protection rights throughout the world. From the General Data Protection Regulation (GDPR) in Europe to the Brazilian General Data Protection Act (LGPD), the concern of lawmakers around the world about protecting these rights has been evident. Likewise, in early July, the Senate Plenary approved the Proposed Amendment to the Constitution (PEC) No. 17 of 2019, which is now awaiting voting by the House of Representatives. In this text, we will discuss the importance of this addition to the constitutional text, pointing out the advantages of this guarantee for the Brazilian personal data protection ecosystem.                                        

What changes with the PEC?

PEC 17/2019 proposes to include the protection of personal data as a fundamental right in our Constitution. More specifically, it proposes the amendment of item XII of art. 5th to guarantee “under the law, the right to the protection of personal data, including in digital media”. In addition, the bill inserts the item XXX to art. 22, establishing that the power to legislate on the protection and processing of personal data becomes the Union’s private designation. 

Thus, with the approval of the PEC, the protection of personal data becomes effective as a fundamental right guaranteed to Brazilian citizens. This matter also becomes more than only a infraconstitutional provision, ensuring greater preservation against arbitrariness, as well as preventing possible confusions and contradictions between federal and state legislations. To better understand what really changes with this addition to the constitutional text, however, we propose a brief digression on what personal data are and what the protection of that kind of data means.

Personal data and its legal protection

When we talk about personal data, we refer to that data that is intrinsically linked to each of us: name, ID, blood type, physical characteristics, or even biometric information. In the context of the internet, we can also include in this concept the data we generate every day – our likes in social media, posts, purchase preferences, browser history, among other things – that define us as network users, in any platform whatsoever. In the legal sense, personal data is information that identifies or can be used to identify an individual as defined in the General Personal Data Protection Act (LGPD).

Protection of personal data, which may become a constitutionally guaranteed right, to another extent, is broader, involving the protection of intimacy, privacy and the guarantee that the personal data we generate will be treated in accordance with the proper protective legislation.

European legislation already brings from Convention no. 108 the discussion on the protection of this right, which was later reiterated in both the recently replaced Directive 45/94 and in the Charter of Fundamental Rights of the European Union in 2000. In this sense, the doctrine has developed over the years, having the protection of personal data even been crystallized in the latest European legislation, which is valid transnationally: the General Regulation for the Protection of Personal Data (GDPR). In this case, Recital no. 1 of the regulation establishes the protection of personal data as a fundamental right for the European legal system.

In Brazil, the Marco Civil da Internet, in 2014, set some parameters to protect individuals on the web. This law was followed by the General Data Protection Act, Law no. 13.709/2018, which will take effect in August next year, about 1 year from this article’s publication date. 

Thus, it is clear that the protection of personal data is taken today as a norm, in either the broad and the strict senses of the word – as it is now enshrined in legislation not only in Brazil, but also in Europe and several other countries around the world. It is therefore necessary to question what changes when we treat such protection as a fundamental right.

The Importance of Data Protection in the Constitution

Speaking of fundamental rights often causes some confusion and disbelief in the general public, commonly used to see discussions within the Judiciary over whether an act or law hurts a particular fundamental precept. To this extent, fundamental rights have become a “commonplace” in the discussions, and in order to criticize or applaud the legislative change we are discussing here, we need to clearly define our object in order to avoid any misfortunes.

There is a constant discussion in the specialized literature about what fundamental rights really are, their differentiation from other rights – such as human rights – as well as where they are in the constitutional text. In this regard, the constitutionalist author Bernardo Gonçalves Fernandes explains the emergence of fundamental rights associated with the rise of the Constitution as the superior norm of the Brazilian legal system, so that he elects eventual rights as endowed with special protection by the Brazilian State.

Moreover, they differ from human rights in that these are mostly internationally recognized, as in the various conventions and standards issued by the United Nations. Fundamental rights, in turn, are realized primarily at the national level. Within the Federal Constitution we see some rights already established in Article 5, such as equality between men and women, freedom of expression or the press, among others: all rights necessary for the pursuit of a democratic ideal.

Thus, still based on the literature of Bernardo Gonçalves, the constitutionalization of rights, making them fundamental rights, implies recognizing people as subjects of law before the states, with the power to oppose abuses, and seeking to meet their needs. Fundamental rights, therefore, have a subjective dimension – which is the faculty of imposing negative or positive action – and an objective dimension – meaning the imposition of fundamental guarantees for the constitution of a state and the maintenance of democracy.

Conclusion

With technological advances, ensuring a healthy ecosystem for the Brazilian citizens is also to ensure that their digital sphere, with regard to their personal data, is respected. Thus, it is important to think of the right to data protection as the foundation for the constitution of an individual’s personality in the contemporary era, in which we are surrounded by applications on all sides. 

Finally, the proposal of PEC 17/2019 is commendable in order to raise the protection of personal data to the level of fundamental right, in line with the position of European legislation and case law. This is due to our data protection law, while mentioning fundamental rights in its text, not presenting data protection as such. 

Inserting this right in the Federal Constitution means that we will protect the virtual sphere of Brazilian citizens with the same respect that we protect their intimate sphere in reality. Finally, this means that the protection of personal data is essential for citizens and must be taken into account in conjunction with the other fundamental precepts of our legal system.

The protection of personal data, as we can see, is fundamental for maintaining citizenship in a democratic regime.  Encryption, in turn, is one of several techniques by which citizens can be guaranteed this right. To learn more about the importance of data protection through encryption, click here!