Data protection and cybersecurity laws in Brazil

Data protection

1. Local data protection laws and scope

General Data Protection Law ("LGPD") 13,709/2018, a comprehensive data protection law comparable to the GDPR. 

2. Data protection authority

National Authority of Data Protection ("ANPD”) 

3. Anticipated changes to local laws

The LGPD came into force on 18 September 2020. However, the law was amended in 2020, postponing the application of the administrative sanctions to 1 August 2021. 

4. Sanctions & non-compliance

Administrative sanctions: 
  • warning; 
  • fine of up to 2% of the entity, group or conglomerate in Brazil’s revenue in its last fiscal year limited to BRL 50m for infraction;
  • daily fine;
  • publication of infraction;
  • blockage of personal data that relates to infraction for regularisation; 
  • erasure of personal data that refers to infraction.
Criminal sanctions: 

None.

Others: 

Individual claims for damages and losses caused for violation of personal data. 

Claims from the Consumer Protection Units and Public Prosecutor for damages and losses caused for violation of the data subject's personal data. 

5. Registration / notification / authorisation

Provision for notification to the ANPD and data subjects of security incidents that may cause a risk or relevant damage to data subjects. 

There is no requirement to register data processing activities, databases or cross-border flow with the ANPD. There is no provision for payment of the data protection fee. 

6. Main obligations and processing requirements

The Controller and Data Processor must comply with the principle of good faith and the following principles: purpose, adequacy, necessity, free access, data quality, transparency, security, prevention, non-discrimination, liability and demonstration of compliance with the law. 

The Data Controller and Data Processor shall keep records of the processing of personal data. 

The Controller shall appoint an "in charge person" (DPO) who shall act as a communication channel between the Controller, Data Subject and the ANPD.

The processing agents shall adopt security, technical and administrative measures to protect personal data from unauthorised access, or illicit or accidental incidents that leads to the destruction, loss, alteration, communication or any other form of illicit or inadequate access. 

The Controller must notify the ANPD and the data subjects of any security incident that could result in a risk or relevant damage to data subjects.

7. Data subject rights

The Data Subject has the following rights:

  • confirmation of existence of personal data;
  • access to data;
  • correction of incomplete, inadequate or out of date data;
  • anonymisation, block, or erasure of unnecessary, excessive or incompliant processed data;
  • portability of data;
  • erasure of personal data obtained with consent; 
  • information regarding the sharing of data with private and public entities;
  • information on the possibility of not providing consent and the negative consequences;
  • revocation of consent;
  • complaint about data processing to the ANPD;
  • opposition to data processing obtained without consent, if it is not in compliance with the law;
  • review of automated decision making of personal data that may affect the data subject´s interests. 

8. Processing by third parties

Processing by third parties is subject to the data subject’s consent. 

9. Transfers out of country

The international transfer of personal data is allowed in the following cases: 

  • to countries or international organisations that provide the appropriate level of personal data protection required by the LGPD;
  • where the controller demonstrates that compliance with the principles, data subject rights and data protection regime established in the LGPD, is assured either by: a) specific contractual provisions for a given transfer; b) standard terms and conditions; c) global corporate rules; d) seals, certificates or codes of conduct; 
  • where the transfer is required for international legal cooperation between government intelligence, investigation and police bodies; 
  • where the transfer is required for life protection or physical integrity of the data subject or any third party; 
  • where the ANPD authorises such a transfer; 
  • where the transfer results in a commitment undertaken under an international cooperation agreement; 
  • where the transfer is required for enforcement of a public policy or legal attribution of the public utility; 
  • where the data subject has provided specific and highlighted consent for such a transfer, with previous information on the international nature of the operation, clearly distinguishing it from any other purposes; or
  • where required for compliance with a statutory or regulatory obligation by the controller or whenever necessary for the performance of agreements or preliminary procedures relating to agreements to which the data subject is a party, at the request of the data subject or in the regular exercise of rights in lawsuits, administrative or arbitration proceedings.

10. Data Protection Officer

An “in charge” person shall be appointed by the Controller to:

  • accept complaints and communication by data subjects, provide clarification and take measures;
  • receive communication from the ANPD and take appropriate measures;
  • instruct staff and contractors in respect of data processing practices; and
  • perform any other instructions by the Controller or established by complimentary rules. 

11. Security

The LGPD establishes that the ANPD may provide for minimum standard technical security measures. 
The processing agents shall adopt security, technical and administrative measures to protect personal data from unauthorised access, or illicit or accidental incidents that leads to the destruction, loss, alteration, communication or any other form of illicit or inadequate access. 

12. Breach notification

The Controller is required to report any security incident to the ANPD and the data subjects in the event of incidents that may cause a risk or relevant damages to data subjects. It is also recommended to report the incidents to the company’s sector regulator or consumer protection units (if related to consumer relations). 

13. Direct marketing

The LGPD does not specifically provide for direct marketing, but it is understood that the data processing for direct marketing requires the data subject’s consent.

14. Cookies and adtech

The LGPD does not specifically deal with cookies and adtech, but it is understood that the data processing for cookies and adtech requires the data subject’s consent.

15. Risk scale

Moderate

Cybersecurity

1. Local cybersecurity laws and scope

There are no dedicated laws related specifically to cybersecurity in Brazil. However:

  • The Consumer Code and the Internet Act provide for certain principles and rules; 
  • The Criminal Code (Decree Law 2,848/1940) establishes the crime of “invasion” of a computing device;
  • LGPD extends to any category of personal data (both offline and online).

2. Anticipated changes to local laws

Despite the lack of cybersecurity-specific law or regulator, an “E-Ciber” strategy was introduced in 2020: 

  • It aims to make Brazil into a “country of excellence” in the sector;
  • It has set out ten strategic ways to strengthen the cybersecurity arena, including: centralisation of the national cybersecurity system; an increase in international cooperation; an improvement in cyber governance in both the public and private sectors; and enhanced protection of critical infrastructure;
  • It also envisages the creation of a new cybersecurity law (yet to materialise).

3. Application 

Not applicable.

4. Authority

Brazil does not have a cybersecurity-specific regulator. The regulatory authority for cybercrime is the Ministry of Justice and Public Security.

5. Key obligations 

Not applicable.

6. Sanctions & non-compliance 

Administrative sanctions:

Under the LGPD:

  • warning; 
  • fine of up to 2% of the entity, group or conglomerate in Brazilian revenue in its last fiscal year limited to BRL 50m for infraction;
  • daily fine;
  • publication of infraction;
  • blockage of personal data that relates to infraction for regularisation; 
  • erasure of personal data that refers to infraction.
Criminal sanctions:

A breach of an IT device could be subject to a fine and imprisonment (from three months to two years).

Others: 

Under the LGPD:

Individual claims for damages and losses caused for violation of personal data. Claims from the Consumer Protection Units and Public Prosecutor for damages and losses caused for violating the data subject's personal data. 

7. Is there a national computer emergency response team (CERT) or computer security incident response team (CSIRT)? 

CERT.br is the Brazilian National Computer Emergency Response Team.

A list of CSIRTs can be found here: www.cert.br

8. National cybersecurity incident management structure

N/A

9. Other cybersecurity initiatives 

Cybersecurity law as envisaged by E-Ciber, but this has yet to materialise.

Portrait of Carolina Vaissman Uribe
Carolina Vaissman Uribe
Senior Associate
Rio de Janeiro