Brazilian-German exchange about data protection policy

Within the Brazilian-German Digital Dialogue, the Brazilian Ministry of Science, Technology and Innovation (MCTI) and the German Ministry for Digital and Transport (BMDV) agreed to host exchanges and activities on data protection and data policy. The Secretariat for the Brazilian-German Digital Dialogue is now conducting a series of exchanges with relevant national and international stakeholders from business associations as well as regulatory entities.

The topic of the first exchange meeting was the dosimetry of administrative sanctions. Dosimetry refers to the methodology that the Brazilian National Authority for Data Protection (ANPD) will adopt to calculate the fines for violating the Brazilian General Data Protection Law (LGPD).

The panel was composed of the Director of ANPD, Arthur Sabbat, the General Coordinator of Inspection, Fabrício Guimarães Lopes, and the Professor of Privacy and Data Protection and Partner at Almeida Law Firm, Márcio Chaves. They discussed the timeline of the regulatory process as well as the main expectations from both ANPD and the private sector.

ANPD's regulatory agenda for 2023–24

ANPD was founded in 2020 to regulate the Brazilian data space. Since then, it has established physical structures and elaborated a strategy as well as an internal regiment. Although still a young institution, ANPD has been very active in rule-setting to interpret the LGPD.

ANPD recently published its biannual regulatory agenda for 2023-24. It aims to make the regulatory process more public, predictable, transparent and efficient by allowing civil society to follow the regulatory actions. Another objective is to bring more legal certainty to the regulated agents. The agenda is divided into four phases. The exchange series on data protection will cover the points of the first phase, with a focus on the regulation of dosimetry and international data transfers.

Regulating the dosimetry of sanctions

Director Sabbat stated that ANPD's main goal is to establish an effective regulatory environment with objective and transparent legal instruments. He also affirmed that the calculation of administrative sanctions is a top priority for ANPD.

Fabrício Guimarães Lopes acknowledged that the regulation of dosimetry is the most sensitive issue for ANPD at the moment. To him, one of the authority's main challenges is adapting penalties according to the principles of proportionality and transparency.

According to Lopes, ANPD intends to develop a set of procedures to promote compliance with the legislation. Sanctions will be the last instrument implemented by the authority to ensure data protection. Finally, both officials affirmed their optimism about meeting the regulatory schedule established by ANPD.

Expectations and concerns of the private sector

Professor and lawyer Márcio Chaves explained that the private sector is eagerly awaiting the definitive rule of ANPD. His questions to ANPD mostly concerned the application of suspensive effect and voluntary corrective measures that can mitigate the previously imposed penalty. Chaves also raised the question of whether it is feasible to reach consensual solutions between the parties involved in the legal proceedings.

Verônica Barros, representing industrial sector associations, also presented her doubts regarding the suspensive effect and the methodology for applying fines. The ANPD officials explained that these concerns will be taken into account when drafting the new regulation.

Further exchanges are planned for the first trimester of 2023. The topic of the next session will be International Data Transfers. More information about the event will be released on the website of the International Digital Dialogues soon.