Despite Last Minute Efforts to Delay the Effective Date, Brazil’s LGPD Is Coming into Force

Brazil’s General Personal Data Protection Law (“Lei Geral de Proteção de Dados” or “LGPD”) was originally scheduled to go into effect on August 15, 2020.  In April of 2020, President Bolsonaro issued a Provisional Measure which postponed the effective date of the LGPD until May 3, 2021.  For the Provisional Measure to stay in effect, however, the Brazilian Congress had to approve it by August 26, 2020.

On August 25, 2020, Chamber of Deputies approved an amendment to the Provisional Measure setting the effective date on December 31, 2020. However, on August 26, in a surprising development, the Brazilian Senate rejected the postponement of the LGPD.  It appears that it will not come into force immediately, but only after the legislative measure voted on by the Senate is approved or vetoed by the President within 15 business days.  Once the LGPD comes into force, it would presumably backdate to its original effective date of August 15.

The LGPD creates a new legal framework for the use of personal data in Brazil, replacing and/or supplementing a sectoral regulatory framework. The law, largely modeled on the European Union’s GDPR, deals with the concept of personal data, lists the legal bases that authorize its use, and provides various rights to data subjects such as access to data, rectification, cancellation or exclusion, opposition to treatment, right to information and explanation about the use of data.

Even though the LGPD is coming into effect, it would not be subject to administrative enforcement until August of 2021.  The main obstacle there is that the National Data Protection Authority, which is tasked with enforcing the law, was just created on August 27, 2020.  While the administrative sanctions might be delayed, other enforcement mechanisms, such as the LGPD’s private right of action, come into force at the effective date.

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