• LGPD enforcement in numbers Lawsuits

The Brazilian General Data Protection Law (LGPD) completes 5 years in 2023, presenting advances and challenges in its implementation. Published on August 14th, 2018, it only became effective in September 2020 and its planned sanctions started to be valid only in August 2021, being, therefore, a law of recent application. Given its importance, it is increasingly cited and present in the decisions of the Judiciary. From an analysis of the decisions and understandings of the main courts of the country it is possible to identify certain trends and perspectives on the norm.

The following conclusions were drawn from a sample of 438 decisions in the period from 01/01/2022 to 12/31/2022, published in second instance and in higher courts (STJ) by the following courts:

– Superior Court of Justice (STJ);

– Court of Appeals of Bahia (TJBA);

– Court of Appeals of Goiás (TJGO);

– Court of Appeals of Santa Catarina (TJSC);

– Court of Appeals of São Paulo (TJSP);

– Court of Appeals of the Federal District and Territories (TJDFT);

– Court of Appeals of Paraná (TJPR);

– Court of Appeals of Rio de Janeiro (TJRJ).

 

– How decisions involving the LGPD are assigned by the courts:

There is a clear predominance for the Court of Appeals of the State of São Paulo (TJSP) to deliver decisions related to the LGPD, which is responsible for 84% of the decisions analyzed. This preponderance in relation to the other courts – which account for only 16% of the decisions – is mainly explained by technical reasons relating to the system used by each Court, in addition to their ability to provide data structured by such systems. See the proportion:

 

  • TJSP à 84%
  • TJBA à 3%
  • TJRJ à 2%
  • TJPR à 2%
  • TJDFT à 2%
  • STJ à 1%
  • TJGO à 1%
  • TJSC à 5%

 

 

– Main findings and trends:

 

  1. The majority of legal proceedings related to the LGPD did not result in adverse judgment:

 

Approximately 57% of the decisions analyzed in second or higher instance that dealt with the matter did not result in any adverse judgment (the case was dismissed or extinguished).

 

  1. Decisions in second or higher instance that involve the LGPD tend not to generate obligations to do or not to do:

In 41% of the cases, adverse judgments only resulted in monetary compensation (without obligations to do or not to do). In 20% of the cases, it was observed that adverse judgments only referred to obligations to do or not to do (there was no monetary compensation). And in 39% of the decisions rendered, there was an adverse judgment in obligation to do or not to do and monetary compensation (at the same time).

 

  1. Regarding the subject of debt collection and credit protection, it was found that sharing personal data with third parties for this purpose does not require the consent of the data subject:

Sharing personal data with third parties, specifically for the purpose of debt collection or credit protection, is generally considered legitimate by judges, regardless of consent. In 53% of the cases, there was an express understanding that consent is not required for this situation. Additionally, when the same sharing is not considered legitimate, it occurs for reasons other than the absence of the data subject’s consent, which is considered in rare circumstances, totaling only 6% of the cases.

 

  1. The occurrence of personal data misuse has a higher risk when there is no proper transparency towards the data subject:

It was found that 82% of the situations where personal data was processed for an inappropriate purpose generated some type of condemnation. However, in cases where decisions also dealt with the lack of proper transparency in processing, the number is even higher, totaling 91% of the cases.

 

  1. Personal data incidents are not the main motivation for actions that reach the second instance:

45% of the decisions in the second or higher instance that deal with the LGPD were motivated by situations involving debt collection or credit protection.

 

  1. In most cases, it was necessary to prove moral damages in order to obtain an adverse judgment:

The proof of moral damages was observed in 65% of the analyzed decisions, which in itself indicates a tendency that it does not have an in re ipsa (presumed) nature. In cases of moral damages caused by incidents, the requirement for proof was even higher, occurring in 80% of the cases. However, if caused by sharing or disclosure of personal data, the number drops to 45%, meaning that proof is waived in most of these cases.

 

  1. The right to deletion is the most demanded:

Regarding the rights of data subjects (Art. 18), it was found that the right to deletion (items IV and VI of the LGPD) was the most demanded, cited in 64% of the decisions, with an adverse judgment rate of 97%.

 

 

–  Adverse judgments:

 

Among the considered decisions, some patterns of results regarding the frequency of adverse judgments were extracted. Basically, it was revealed that 57% of the decisions did not result in adverse judgment or maintenance of adverse judgment, while 43% did.

In addition, the predominance of awards (e.g., compensation) compared to obligations to do or not to do (e.g., elimination by the defendant of such personal data) is notable, representing 80% of the analyzed decisions, which leads to the conclusion of a greater tendency to file actions in court in cases where there is an actual damage to be compensated due to possible illicit facts in the processing of personal data, encompassing both pecuniary and moral damages.

However, obligations to do or not to do totaled 59% of the considered decisions, which highlights the protection of the rights of data subjects, exercised by the contentious jurisdiction, regardless of the need for compensation for possible illegalities related to the processing of personal data.

It is also noteworthy that in 39% of the decisions, there was an adverse judgment in obligations to do or not to do cumulatively with an award, indicating the intention of the Judiciary to remedy and repair violations of the rights of data subjects.

 

– Main obligations to do found:

 

  • Deletion of personal data à 67%
  • Refrain from disclosure/sharing à 13%
  • Provide Personal Data à 7%
  • Provide Information à 4%
  • Others à 9%

 

 

– Motivations:

 

Different motivations were identified in the analyzed decisions. The five most recurrent motivations related to data processing issues were, respectively:

  • Collection and credit protection (45%);
  • Sharing and disclosure (28%);
  • Security incidents (11%);
  • Criminal matters, including fraud, scams, etc. (4%);
  • Other motivations related to the legitimacy of data processing (12%), including:

 

  • Unwanted contacts (without data leakage) (3%)
  • Consumer data privacy (3%)
  • Privacy on social networks (2%)
  • Financial data privacy (2%)
  • Health data privacy (2%)
  • Privacy in the use of image (<1%)

 

  1. Collections and Credit Protection:

This is a very frequent motivation, present in 45% of the evaluated cases. The considerable predominance of this theme in relation to other motivations (55%) reveals the potential use, by plaintiffs, of the Informed Self-Determination, a principle of the LGPD that characterizes the right to understand and express a positioning on the flow of their data, from the moment they are captured until their disposal.

Regarding the amount of adverse judgments that involve collections and credit protection, they vary according to the nature of the compensation:

  • Moral damages à From BRL 3,000.00 to BRL 15,000.00
  • Pecuniary damages à From BRL 1,406.88 to BRL 10,000.00

 

– The need for the data subject’s consent for the sharing of their personal data for the purposes of credit protection or collection:

It was observed that in decisions dealing with collections and credit protection in which the judge determined the illegitimacy of sharing, consent for sharing was generally not required, being required in only 6% of the cases.

Requirement for consent in cases of illegitimate sharing:

  • Consent was required à 6%
  • Consent was not required à 94%

 

When legitimacy of sharing was determined, consent was waived in 53% of the cases.

Requirement for consent in cases of legitimate sharing:

  • Consent was waived à 53%
  • Consent was not waived à 47%

 

Thus, it is possible to conclude that the Judiciary does not require consent for the sharing of personal data for credit and collection purposes. The legitimacy of the sharing of personal data does not depend on the consent of the data subject.

 

  1. Sharing and disclosure of personal data:

A significant number of decisions from the second or higher instance were found, in which the plaintiff alleges the sharing and unauthorized disclosure of their personal data, totaling 28% of the cases.

Frequency of Sharing/Disclosure:

  • Sharing/Disclosure à 28%
  • Other motivations à 72%

 

Next, the frequency of adverse judgments regarding the subject was observed, which coincidentally also occurred in 28% of the analyzed cases.

Frequency of Adverse judgments:

  • With adverse judgment à 28%
  • Without adverse judgment à 72%

 

Regarding the amounts of adverse judgments involving the sharing and/or unauthorized disclosure of personal data, on average, they are higher when granted as moral damages and lower with regard to pecuniary damages.

Sharing and Disclosure – Adverse judgments:

  • Moral damages à From BRL 1,000.00 to BRL 20,000.00
  • Pecuniary damages à From BRL 1,000.00 to BRL 3,000.00

 

 

  • Data Breach Incident:

It was identified that approximately 11% of the motivations in the analyzed cases alleged a data breach incident. However, this allegation occurs more frequently as an ancillary allegation in other actions of different motivations, probably due to the interpretation made by the General Data Protection Law (LGPD) in the sense that inadequate or unlawful processing, mainly with the potential to cause harm to data subjects, can be considered incidents.

 

  1. Cases related to potentially criminal matters:

When considering the specificities of the cases, it was often observed that there were potentially criminal matters related to other themes, such as the improper sharing and/or disclosure of personal data. Thus, the sample of these cases is quite comprehensive, considering not only decisions in the criminal sphere, but also in the civil sphere, as long as they are related to potentially criminal facts, including frauds and scams.

Criminal – Frequency of Occurrences:

  • Criminal (including frauds, scams, etc.) à 4%
  • Other motivations à 96%

 

When observing the frequency of occurrences related to the situations mentioned above, it is around 4% of the cases.

Adverse judgments occurred in 71% of the analyzed cases.

Frequency of Adverse judgments:

  • With adverse judgment à 71%
  • Without adverse judgment à 29%

 

Regarding compensation values, a greater range was observed for pecuniary damages.

Minimum and maximum compensation values:

  • Moral damages à From BRL 3,000.00 to BRL 5,000.00
  • Pecuniary damages à From BRL 2,399.00 to BRL 25,849.00

 

 

  1. Other Motivations Related to the Legitimacy of Personal Data Processing:

A series of other motivations involving the legitimacy of personal data processing was also identified, however, it represents a minority of the cases.

These other identified motivations include:

  • Consumer Data Privacy à 2%
  • Financial Data Privacy à 2%
  • Privacy on Social Networks à 2%
  • Health Data Privacy à 2%
  • Image Use Privacy à 1%
  • Unwanted Contacts (without leakage) à 3%

 

Among these motivations, it is worth noting that unwanted contacts and issues related to the processing of consumer data in a generic way are the most recurrent.

Regarding the value of the adverse judgments, the few that occurred and determined compensation for moral damages in these cases ranged from BRL 500.00 to BRL 9,500.00. There were no substantial numbers regarding compensation for pecuniary damagesadverse judgment.

Finally, it should be highlighted that most cases of unwanted contacts involve phone calls, accounting for 56% of the cases.

Types of Unwanted Contacts:

  • Phone Calls à 56%
  • WhatsApp à 33%
  • SMS à 11%

 

  1. Relevant Themes:

In addition to the motivations already discussed, other themes relevant to the study in question were mentioned. Considering a sample of 117 decisions, the following was found:

  • Lack of Transparency – 92 occurrences
  • Misuse of Data – 61 ocurrences
  • Data Subject’s Rights – 45 ocurrences
  • Security/Breach – 21 ocurrences

 

We will analyze each topic separately below:

 

  • Security/Breach:

 

The mentions related to security/breach incidents encompass decisions that recognize that a “security breach” has caused unauthorized access, alteration, loss, or exposure of personal data.

 

 

– Frequency:

 

It was found that approximately 12% of all analyzed decisions dealt with discussions involving security incidents. Regarding the frequency of adverse judgments, it was observed that 29% of the cases covered by the current research resulted in adverse judgments.

 

  • Adverse judgment à 29%
  • Without adverse judgment à 71%

 

– Compensation values:

Adverse judgment à The values ranged from BRL 500.00 to BRL 25,849.00. When the adverse judgment was only for moral damages, the values ranged from BRL 500.00 to BRL 10,000.00. In the case of adverse judgment for pecuniary damages, the variation is greater, ranging from BRL 599.99 to BRL 25,849.00.

 

– Leaked data:

 

In addition, it was identified what data was potentially leaked more frequently within security incidents. In this sense, registration data (such as name, ID, and CPF) and contact data (telephone, address, and email) were the most leaked, being made available in about 90% of incidents.

 

  • Registration Data (Name, ID, CPF) à 90%
  • Contact Data (Phone, Address, Email) à 90%
  • Other low-risk data à 20%
  • Purchase data à 10%
  • Bank data à 10%

 

 

– Facts Considered and Frequency of Adverse judgments:

 

Regarding the outcome of the analyzed decisions, certain tendencies were observed, mainly with regard to the existence or not of an adverse judgment, directly influencing the agent’s liability or not.

 

An example of this would be the finding that in cases where there was an allegation of fortuitous event or force majeure, the adverse judgment is almost certain. On the other hand, it is possible to observe that the public communication of the incident, or communication to the ANPD, the absence of a causal relation with the damage suffered by the plaintiff, as well as the exclusive fault of the data subject or third parties, tend to reduce the chances of adverse judgment.

 

  • In re ipsa nature (or not) of moral damage à 45% of the cases with adverse judgment; 55% of the cases without adverse judgment.

 

  • Type of leaked data: 50% of the cases with adverse judgment; 50% of the cases without adverse judgment.
  • There was an incident, but there was no proof of a causal relation with eventual damage: 100% of the cases without adverse judgment;

 

  • How the plaintiff became aware of the incident: 40% of the cases with adverse judgment; 60% of the cases without adverse judgment.

 

  • Company’s public communication about the incident: 100% of the cases without adverse judgment;

 

  • Fortuitous event or force majeure: 100% of the cases with adverse judgment;

 

  • Exclusive fault by a third party: 100% of the cases without adverse judgment;

 

  • Exclusive fault by the data subject: 100% of the cases without adverse judgment;

 

  • Communication to the ANPD: 100% of the cases without adverse judgment;

 

 

  • Rights of Data Subjects (Article 18 of the LGPD):

 

– Frequency of the Topic: Rights of Data Subjects:

 

When analyzing a sample that included ancillary requests, it became clear that discussions involving the right to erasure and generic failures in meeting the rights of data subjects were present, constituting 25% of the analyzed cases.

 

  • Rights of Data Subjects à 25%
  • Other Topics à 75%

 

Furthermore, it was identified that the topics of erasure (64%) and access to information (20%) were the most common within the analyzed theme. Cases of failure in meeting the rights of data subjects regarding their personal data represented 29% of the analyzed cases.

 

– Sample: 45 mentions of data subjects’ rights:

 

  • Erasure à 29 occurrences
  • Access à 09 occurrences
  • Failure in meeting the rights of data subjects à 16 occurrences

 

 

– Frequency of Adverse judgments:

 

Regarding adverse judgments, they occurred frequently.

 

– Sample: 45 mentions of data subjects’ rights:

 

  • Erasure à 28 adverse judgments
  • Access à 07 adverse judgments
  • Failure in meeting the rights of data subjects à 15 adverse judgments

 

– Adverse judgment Values:

Regarding non-material damages in these cases involving data subjects’ rights, the compensations ranged from BRL 500.00 to BRL 15,000.00, specifically for the following variables:

  • Erasure à From BRL 3,000.00 to BRL 15,000.00
  • Non-Material Damages à From BRL 500.00 to BRL 10,000.00
  • Access à From BRL 4,000.00 to BRL 10,000.00

 

Regarding pecuniary damages, it was only possible to analyze data related to failures in meeting the rights of data subjects regarding their personal data, as follows:

  • Failure in meeting the rights of data subjects à From BRL 280 to BRL 25,849

 

  • Transparency and Misuse of Personal Data

 

The topics of transparency and misuse of personal data were discussed together, given the frequency of their simultaneous mention in the actions:

 

– Transparency:

 

Concept: Data subjects must be provided with accurate, clear, and easily accessible information regarding the ways, conditions, and details of the processing.

 

Conclusion: A common topic when the situation discussed considers the awareness, on the part of the data subject, about the activity or activities in question.

 

– Misuse of Personal Data:

 

General Concept: Personal data processing must be conducted in accordance with the purposes informed to the data subject (principle of adequacy). If processing with a purpose other than the one informed occurs, there may be misuse of personal data.

 

Interpretation in Decisions: The topic is considered when there is identification that personal data has been processed for improper and foreign purposes.

 

 

– Frequency of Occurrences:

 

A significant portion of the processes used in the sample verified that both lack of transparency and misuse of personal data occur with some frequency.

 

Sample: 177 decisions

 

– Lack of Transparency à 92 mentions

– Misuse of Personal Data à 61 mentions

 

 

– Frequency of Adverse judgments:

 

When cross-referencing decisions considering lack of transparency and misuse of personal data with the adverse judgment rate of lawsuits, it is inferred that, despite misuse of personal data having a high chance of generating an adverse judgment, the combination of misuse of personal data with lack of transparency considerably increases these chances. This suggests that the proper application of transparency throughout all processing activities can reduce the chance of adverse judgment by 9%, making the relevance and effectiveness of this type of preventive measure clear.

 

  • Lack of Transparency à 58% without adverse judgment; 42% with adverse judgment
  • Misuse of Personal Data à 18% without adverse judgment; 82% with adverse judgment
  • Both à 9% without adverse judgment; 91% with adverse judgment

 

 

– Values of Adverse judgments:

 

There were various variations when considering the minimum and maximum values of adverse judgments for pecuniary damages:

 

– Lack of Transparency à From BRL 1,406.88 to BRL 10,000.00

– Pecuniary damages à From BRL 599.99 to BRL 25,849

– Both à From BRL 5,000.00 to BRL 10,000.00

 

As for adverse judgments for moral damages, there was no significant quantity involving the topic.

 

 

 

– Analysis of Interpretations:

 

From the aforementioned study, it was also possible to conduct a more in-depth analysis of second instance decisions regarding the in re ipsa nature of moral damages, by observing their different motivations. In addition, the influence of the in re ipsa nature on moral damage awards was also analyzed.

 

  • Overall à 35% have in re ipsa nature; 65% do not have in re ipsa nature
  • Incidents à 20% have in re ipsa nature; 80% do not have in re ipsa nature
  • Collection and Credit Protection à 36% have in re ipsa nature; 64% do not have in re ipsa nature
  • Sharing/Disclosure à 55% have in re ipsa nature; 45% do not have in re ipsa nature

 

Thus, it is possible to infer that there is a broader understanding about the in re ipsa nature of moral damages in cases related to the sharing and/or unauthorized disclosure of data, totaling 55% of the analyzed decisions. On the other hand, there is a lower potential in actions motivated by issues related to collection and credit protection, encompassing around 36% of the analyzed cases. Finally, with regard to cases related to security incidents, the observed percentage reached only 20% of the cases.

 

– In re ipsa nature of moral damages in judgments involving security incidents:

 

There is controversy regarding the possible in re ipsa nature of moral damages caused by security incidents, especially when it involves exposure and leakage of data, without the need for proof.

 

  • Corpus 1: Moral damages caused by security incidents have an in re ipsa nature:

 

According to this view, the mere incident with personal data (including, in most cases, leaks) is capable, in itself, of causing moral damage. Therefore, it would not be necessary to prove the occurrence and extent of the damage to warrant condemnation for compensation.

 

  • Corpus 2: Moral damages caused by security incidents do not have an in re ipsa nature:

 

According to this view, the mere incident with personal data (including, in most cases, leaks) is not capable of causing moral damage. Therefore, it would be necessary to prove the occurrence and extent of the moral damage to warrant an obligation for compensation.

 

In a recent decision issued on March 7th, 2023 by the Min. Francisco Falcão from the Superior Court of Justice (STJ) in AREsp 2130619/SP it was recognized that material damage resulting from an ordinary personal data security incident (i.e., name, surname, and basic registration information) is not presumed. This means that when the affected data is not classified as sensible data, the data subjects must demonstrate the real damage resulting from the exposure of this information.

 

 

 

– In re ipsa nature of moral damages in judgments that cover other situations:

 

In regard to moral damages, the need for proof varies according to the legal fact that generates it. Many judgments, according to the interpretation of the Judiciary, require proof in cases of security incidents, while in other cases, the issue is treated heterogeneously.

 

– Sharing/Disclosure:

 

  • 55% have in re ipsa nature;
  • 45% do not have in re ipsa nature;

 

– Collections and Credit Protection:

  • 36% have in re ipsa nature;
  • 64% do not have in re ipsa nature;

 

– Collections and credit protection:

Decisions motivated by collections or credit protection require proof of moral damages for indemnity purposes (64%).

 

– Sharing or disclosure:

In cases of judgments motivated by sharing or disclosure of personal data, there is a tendency in favor of the understanding that the mere unlawful act is sufficient to warrant compensation for moral damages, although the courts are divided on the subject (55%).

 

  • Performance of the ANPD in the administrative sphere

 

In addition to the abovementioned Lawsuits, the National Data Protection Authority (“ANPD”) also supervises companies/organizations to guarantee compliance with LGPD provisions in the administrative sphere.

Among the ANPD’s duties, it is worth highlighting the monitoring, guidance, and prevention activities, within the scope of the inspection process which, depending on the outcome, may initiate repressive activity through the Administrative Sanctioning Process.

In exercising its supervisory powers, the ANPD may act (i) ex officio, (ii) as a result of periodic supervisory programs, (iii) in coordination with public bodies and entities, or (iv) in cooperation with personal data protection authorities from other countries, of an international or transnational nature.

The Administrative Sanctioning Process is designed to investigate breaches of data protection legislation within the ANPD’s remit, under the terms of article 55-J, IV, of the LGPD, and can be opened (i) ex officio by the General Inspection Coordination, (ii) as a result of the inspection process, or (iii) in the event of a request in which the CGF, after carrying out an admissibility analysis, decides to immediately open a sanctioning process.

 

We therefore highlight below the main statistics released by the ANPD, which include data up to the third quarter of 2023:

  • Total number of security incidents reported since January 2021: 733
  • Total number of requirements received since January 2021: 646
  • Concluded inspection processes: 16
  • Ongoing inspection processes: 13
  • Inspection Processes that turned into Administrative Sanctioning Processes: 9
  • Sanctions applied: 3

We will analyze each one separately below:

  • Total of security incidents reported since January 2021:

Among the reported 733 security incidents, only 274 were categorized in relation to the type of security incident[1] and the number of communications for each type, given that it was only possible to make this information available from January 2023, when the new version of the Security Incident Communication Form began to be used. Therefore, the incidents reported are divided into the following categories:

Type of Security Incident Number of Security Incident Communications (“CIS”)
Data hijacking (ransomware) with information transfer and/or publication 60
Data hijacking (ransomware) without information transfer 51
Exploitation of vulnerability in information system 45
Unauthorized access to information system 25
Sending data to incorrect recipient 18
Improper disclosure of personal data 18
Credential Theft / Social Engineering 13
Loss/theft of documents or electronic devices 9
Another type of non-cyber incident 9
Failure in information system (software) 7
Another type of cyber incident 7
Unintentional publication of personal data 7
Unauthorized alteration/deletion of personal data 2
Incorrect disposal of documents or electronic devices 2
Computer Virus/Malware 1

 

Around 40% of information security incident reports concern data hijacking (ransomware), which are attacks/locks on computers in exchange for payment as ransom and return to control of the device. Some measures, such as blocking the addresses of suspicious websites, reviewing security on the devices, and implementing access control to profiles related to your business, among others, can be taken to rule out the possibility of an attack/data hijacking.

 

  • Total requests received since January 2021

Since January 2021, the ANPD has received 2,646 requests (complaints or petitions from data subjects) requesting enforcement of personal data protection legislation in relation to data subjects.

Petitions are instruments used by data subjects to inform the ANPD of a request submitted to the controller which has not been resolved within the period established by regulation. Complaints are communications made to the ANPD by any person, natural or legal, about an alleged infraction committed against Brazilian personal data protection legislation, other than a data subject’s petition.

  • Concluded inspection procedures

The ANPD has already conducted and closed 16 inspection cases, as detailed below:

 

Operation agents Analysis Scope Process n.
DNIT e PRF Data sharing from DNIT to PRF 00046.000690/2020-22
WhatsApp LLC Analysis of the Privacy Policy amendment 00261.000012/2021-04
Rebouças/PR City Hall Disclosure of sensitive data 00261.000565/2021-59
Facebook Verification of compliance on the processing of personal data 00261.000342/2021-91
Federal Police Verification of compliance on the processing of personal data 00261.000836/2021-76
Telegram Messenger Inc. Verification of compliance on the processing of personal data 00261.000298/2022-09
Recife/PE City Hall Verification of compliance on the processing of personal data – Contracting of monitoring and facial recognition 00261.001708/2021-40
Brazilian Federal Revenue Verification of compliance on the processing of personal data -Ordinance RFB nº 81/2021 00261.001732/2021-89
Digital Govern Secretary Verification of compliance on the processing of personal data – Technical Cooperation Agreement n. 27/2021 – SGD x Bank Brazilian Association 00261.000043/2022-38
Digital Govern Secretary Verification of compliance on the processing of personal data – Technical Cooperation Agreement n. 16/2021 – SGD x FEBRABAN 00261.000064/2022-53
Health Ministry Verification of compliance on the processing of personal data – Data breach of doctor’s participating in public hearing data 00261.000079/2022-11
Brazilian Federal Revenue Verification of compliance on the processing of personal data – Ordinance RFB n. 167/2022 00261.000821/2022-99
Buonny e Open Tech Verification of compliance on the processing of personal data – Use of personal data for discriminatory purposes 00261.000851/2022-03
Federal Service on Data Processing – Serpro Technical Cooperation Agreement between Serpro and Drumwave 00261.001457/2022-84
Ministry of Management and Innovation – Secretariat of Digital Government Verification of compliance on the processing of personal data – Sharing of personal data between public organizations 00261.002620/2022-26
Municipal Secretariat of Citizen Security (Sesec) of the Municipality of Fortaleza/CE Verification of compliance on the processing of personal data 00261.002211/2022-20

 

  • Ongoing inspection procedures

 

In addition to the processes already concluded, there are currently 13 inspection ongoing processes being investigated by the CGF to verify compliance in the processing of personal data, as detailed below:

 

 

Operation agent Scope of Analysis Process n.
Bytedance Brasil Tecnologia Ltda. (TikTok) Verification of compliance in the children and adolescents processing of personal data

 

 00261.000297/2021-75
Non-identified Verification of compliance on the processing of personal data of 223 million Brazilian citizens

 

 00261.000050/2021-59
Federal Service on Data Processing – Serpro Verification of compliance on the processing of personal data – sharing of personal data between public organizations

 

 00261.000704/2021-44
Ministry of Justice and Public Security Verification of compliance on the processing of personal data 00261.001028/2021-26
Unitfour Tecnologia da Informação Ltda. Verification of compliance on the processing of personal data 00261.008253/2021-54
Zappo Tecnologia da Informação e Publicidade Ltda.-ME (Contact Pró) Verification of compliance on the processing of personal data 00261.001709/2021-94
Claro S.A. e Serasa S.A. Verification of compliance on the processing of personal data 00261.000227/2022-06
National Institute of Educational Studies and Research Anísio Teixeira (INEP) Verification of compliance on the processing of personal data – Changes in ENEM’s data policy 00261.000730/2022-53
WhatsApp LLC. Verification of compliance on the processing of personal data – Sharing of data with the Companies of the Meta Group (Facebook)

 

 00261.001296/2022-29
Nacional Social Security Institute (INSS) e Dataprev Verification of compliance on the processing of personal data – sharing for the offer of payroll loans 00261.001688/2022-98
Government of the State of Paraná, Company of Information Technology and Communication of Paraná (Celepar) e Algar Soluções em TIC S.A. (Algar Telecom) Verification of compliance on the processing of personal data 00261.002036/2022-71
Education Center of Media of São Paulo, Uncomplicates, Plus School, Study at home, Explicaê, Manga High e Stoodi Verification of compliance on the processing of children and adolescents’ personal data by digital teaching platforms 00261.001328/2023-77
RaiaDrogasil S.A., Stix Fidelidade e Inteligência S.A. e Febrafar (Brazilian Federation of Associative and Independent Pharmacy Networks) Verification of compliance on the processing of personal data 00261.001371/2023-32

 

  • Procedures that became Administrative Sanctioning Processes:

By the second quarter of 2023, the ANPD reported the existence of 8 administrative sanction proceedings, as highlighted below:

Proceeding n. Organization/ Company Initiated in Investigated conduct
00261.000456/2022-12. Ministry of Health 7 March 2022 Failure to comply with the ANPD request; absence of a Data Protection Officer; failure to communicate a data breach
261.000489/2022-62. Telekall Infoservice 10 March 2022 Absence of a legal basis for the operation of data; absence of a record of operations; failure to submit a Data Impact Assessment; absence of a Data Protection Officer; failure to comply with the ANPD request
00261.000574/2022-21 Botanical Garden Research Institute of Rio de Janeiro 22 March 2022 Failure to communicate a data breach; Failure to comply with the ANPD request
00261.001192/2022-14 Department of Education of the Federal District 1 June 2022 Failure to comply with the ANPD request
00261.001882/2022-73. Ministry of Health 12 September 2022 Failure to communicate a data breach to data subjects; absence of security measures.
00261.001886/2022-51 Secretary of State of Health of Santa Catarina 17 September 2022 Failure to communicate a data breach to data subjects; absence of security measures; failure to comply with ANPD request.
00261.001969/2022-41 Institute of Assistance to the State Public Servant of São Paulo – IAMSPE 30 September 2022 Failure to communicate a data breach to data subjects; Absence of security measures
00261.001963/2022-73 Secretariat of Social Development,  Child and Youth – PE 07 October 2022 Failure to communicate a data breach to data subjects; absence of security measures.
00261.001888/2023-21 National Institute of Social Security – INSS Not informed Failure to report a security incident to data subjects and failure to comply with a preventive measure adopted by the ANPD

 

Some inspection procedures were converted into Sanctioning Administrative Processes to thoroughly investigate cases in which there is an indication that there has been a violation of the LGPD and personal data protection regulations. In cases where there is proof of violations, the ANPD/CGF may apply sanctions.

In March 2023, the ANPD released a list of sanctioning administrative proceedings instituted so far. The list is comprised by public organizations and only one private company, which so far, has been the only one condemned to the application of administrative sanction by the Authority.

 

  • Sanctions applied

To this moment, the ANPD has applied three sanctions, including a fine for non-compliance with the LGPD, after the administrative sanctioning process that was ongoing:

Proceeding n. Organization/ Company Penalty/ Warning Applied in Reason
261.000489/2022-62 Telekall Infoservice R$ 14.400,00 07/06/2023 Processing of personal data without legal basis and lack of proof of a DPO.
00261.001969/2022-41 Institute of Assistance to the State Public Servant of São Paulo – IAMSPE N/A – Only warning was applied 10/6/2023 Failure to report a security incident to the data subjects; lack of security measures
00261.001886/2022-51 Secretary of State of Health of Santa Catarina N/A – Only warning was applied 10/18/2023 Failure to prepare a RIPD (Data Protection Impact Report) when requested by the ANPD and failure to report information security incidents to data subjects and to the ANPD

 

 

[1] The data presented are those provided by the data processing agents themselves, without the participation of the ANPD.

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