By: Leonardo Neri

In May 2022, a ruling was handed down by the 39th Civil Court of São Paulo, regarding a lawsuit filed by a confidential NGO against Nubank, which caused controversy among experts in the matter. The aforementioned decision extinguished the public civil action without resolution of the merits.

The sentence in question was based on the following narratives:

The first, regarding the lack of interest in acting, since the judge understood that the NGO needed to prove the support of its members for the due filing of a collective action, through the use of Thesis 82 of General Repercussion.

Another point that generated criticism was the lack of prior investigation into the “leak”. The decision cited the presentation of evidence as weak, claiming that such support was provided by publications on Twitter.

This issue was brought up in discussions on the topic, especially regarding the prerequisites necessary for filing lawsuits on the subject of privacy, since there is no legislative provision that prevents the filing of a lawsuit without proof of investigative diligence. Such a requirement, on the contrary, would violate the provisions of 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 grounds was the Collection Intent of the process, since the sentence incisively points out that the plaintiff NGO has an interest in receiving compensation and attorney's fees, omitting the main function of a Non-Governmental Organization, without even bringing to the records a concrete basis for such an allegation.

It is worth reading and reflecting on the judicial decision in question, 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 replicating case law riddled with interpretative contradictions regarding the true purposes of the legislation, which is still recent in Brazil.

With the collaboration of Pedro Sobolewski.