By Leonardo Neri Candido de Azevedo

At the end of last year, the government published Provisional Measure (MP) 869/18, which created the National Data Protection Authority (ANPD). After the authority's initial veto of the new Data Protection Law project, it was approved.

It is worth noting that, unlike what was proposed in the original text, which foresaw the creation of an autonomous entity linked to the Ministry of Justice, the new authority will be an organ of the Presidency of the Republic, which will only have technical autonomy, but not financial autonomy.

The ANDP will be composed of a board of directors made up of five directors who will be appointed by the President of the Republic.

However, what has drawn attention in the enactment of the MP is that the text determines that the powers of the ANDP in relation to the protection of personal data will prevail over the related powers of other entities or bodies of the public administration.

In this sense, the content of the rule brings a premise that in practice could oppose the traditional circuit of rejection by the Brazilian consumer, who holds ownership of the main object dealt with in the Law, that is, the protection of personal data.

In the same vein, the understanding of the National Consumer Secretariat (SENACON) suggests that the Presidency of the Republic issue a new rule to better protect citizens' data. The opinion recommends that this provision be changed so that participation in the National Council for the Protection of Personal Data is, at the very least, equal between the government, private initiative and civil society, with a greater presence of Consumer Protection entities. It is worth noting:

“Although MP 896/2018 may have positive aspects – such as the first step towards the desire to create a specialized agency, along the European lines –, some articles and subparagraphs may go against the interests of consumers, which is why it is necessary to analyze its text carefully, with the most sensitive point being the institutional arrangement of the ANPD. In fact, despite the provision for dialogue between the ANPD and SENACON – and other bodies with jurisdictions affected by the National Consumer Defense System (SNDC) –, MP 869/2018, by establishing the primacy of the ANPD over other public bodies for the purposes of the LGPD, creates discussions and questions related to its constitutionality and even legal uncertainty and, more seriously, potential harm to consumer rights. To this end, it is important to remember Brazil's recent experience with the creation of several regulatory agencies specialized in specific markets and the perception (in the absence of empirical studies that would allow this to be confirmed or not) that exists in Brazilian society that consumers were left helpless in this regulatory design.”

Thus, some experts argue that, due to the competing responsibilities in relation to those to be performed by the ANPD, it would be appropriate to create an independent agency or authority with a structure similar to that of the Administrative Council for Economic Defense (CADE). However, this structure would have considerable costs. Likewise, the discussion about the capture of the regulator to the detriment of consumers should be debated further.

Therefore, the concurrent jurisdiction between SENACON and ANPD and the possible primacy of ANPD may result in problems related to legal uncertainty and the executive nature of the rule. Therefore, it is understood that there is a need for further reflection on the subject and possible changes to the text of the rule, which has been debated by the Committee that is analyzing the MP.