by: Leonardo Neri
In May 2022 a sentence was handed down by the 39th Civil Court of São Paulo, regarding a lawsuit filed by a private NGO against Nubank, which caused controversy among experts on the matter. The decision extinguished the public civil action without resolution of merit.
The sentence in question brought in its fundamentals the following narratives:
The first, about the lack of interest in action, since the judge understood as necessary by the NGO the proof of support from its members for the due filing of a collective action, through the use of the General Repercussion Thesis.
Another point that generated criticism was the lack of prior investigation of the “leak”. The decision cited as weak the presentation of evidence, alleging that such a basis was given by publications on Twitter.
This issue was brought up in discussions on the subject, especially regarding the necessary prerequisites for the filing of lawsuits on the issue of privacy, because there is no legislative existence that prevents the filing of a lawsuit without proof of investigative diligence. On the contrary, such a requirement would go against the Federal Constitution, which in its article 5, XXXV, demonstrates the guarantee of access to justice as fundamental to the rule of law.
Another point highlighted in the reasoning was the Arrecadatorial Intent of the process, since the sentence points out incisively that the NGO plaintiff has an interest in receiving compensation and fees, omitting the main function of a Non-Governmental Organization, without at least bringing to the records a concrete basis for such an allegation.
It is worth reading and reflecting on the judicial decision under comment, publicly available on the website of the Court of Justice of the State of São Paulo, since we are experiencing the beginning of the creation of more solid understandings on the subject of privacy and data protection, and decisions that are not well founded may serve as a basis for the replication of jurisprudence full of interpretative contradictions about the true purposes of the legislation, which is still recent in Brazil.