ANPD: Public Consultation on the preliminary study of legitimate interest
The National Data Protection Authority (ANPD) invites the general public to submit suggestions and comments on the Preliminary Study – Legitimate Interest (click here). The purpose of this consultation is to facilitate public discussion to assist in the future development of a Guidance Manual on the legal basis for the processing of personal data by the data controller based on Legitimate Interest, as established in Article 7, IX, of the General Data Protection Law (LGPD).
Legitimate Interest has gained prominence and is widely used in the market because, unlike consent, it is based on the interest of the data controller rather than the self-determination of the data subject. Furthermore, this legal basis allows for adaptation to the constant technological changes and the systematization of new concrete cases in data protection.
LGPD provides examples of situations that fall under Legitimate Interest (Article 10): supporting and promoting the controller’s activities; and protecting the regular exercise of rights in relation to the data subject, or providing services that benefit the data subject. It also establishes requirements for the application of Legitimate Interest (§1 and 2): (i) the processing must not violate the fundamental rights and freedoms of the data subject, nor their legitimate expectations, and (ii) measures to ensure transparency in this processing must be adopted.
However, Legitimate Interest has also faced criticism due to its abstraction and interpretational challenges. Its improper use in the European Union is one of the main reasons for sanctions imposed by authorities. Therefore, given the controversies that have also arisen in Brazil regarding specific situations of its application, ANPD recognized the need to guide society on the subject.
The Preliminary Study – Legitimate Interest proposes practical guidelines based on definitions and interpretation parameters. Additionally, the document includes a “balancing test” model with three phases: (i) purpose; (ii) necessity; and (iii) balance and safeguards. It is important to note that what is outlined in the document can also be used for the application of Article 11, II, “g,” of the LGPD: “ensuring fraud prevention and data subject security.”
ANPD’s public consultation will remain open to receive contributions on the Participa Mais Brasil System – Opine Aqui (click here) until September 30, 2023, on the following topics: (i) general contributions on the Preliminary Study – Legitimate Interest; (ii) providing specific examples of personal data processing based on Legitimate Interest; and (iii) additional comments and suggestions.
The team at Souto Correa Advogados is available to assist clients and associations in submitting comments and contributions to the public consultation with ANPD, with highly specialized professionals in the field.
Click here to access our E-book on Legitimate Interest, which includes requirements and recommendations based on national and European Union doctrine and jurisprudence.