I. Legal Framework
Constitutional privacy framework
Article 5 of the 1988 Constitution of Brazil1 provides that "the privacy, private life, honor and image of people are inviolable, and the right to compensation for property or moral damages resulting from their violation is ensured."2 The Constitution also holds the home as "inviolable," and "no one may enter therein without the consent of the dweller, except in the event of flagrante delicto or disaster, or to give help, or, during the day, by court order."3 Correspondence and electronic communication are also protected, except by court order "for purposes of criminal investigation or criminal procedural finding of facts."4 "Access to information is ensured to everyone and the confidentiality of the source shall be safeguarded, whenever necessary to the professional activity."5 Finally, the Constitution provides for habeas data, which guarantees the rights: a) to ensure the knowledge of information related to the person of the petitioner, contained in records or databanks of government agencies or of agencies of a public character; and, b) for the correction of data, when the petitioner does not prefer to do so through a confidential process, either judicial or administrative.6
Statutory rules on privacy
The scope of the constitutional right to habeas data was clarified with the passage of additional procedures and definitions in 1997.7 Under the Habeas Data Law, an individual has a right to petition for rectification of incorrect data.8 However, if the maintaining organization disputes or chooses not to make the correction, the petitioner only has the right to annotate the data with an explanation, rather than force a correction.9
The Brazilian Civil Code, effective since January 2003, provides protection by declaring, "the private life of an individual is natural and inviolable" and evinces that the judiciary, at the request of an individual, must adopt measures to protect against actions to the contrary.10 In particular, the Civil Code states that the non-authorized disclosure of writings, transmission of words, publication, exhibition or use of a person‚ image may be hindered, at his/her request and without prejudice to any potential indemnifications, in case such acts may cause harm to the honor, good fame or respectability of said individual, or in case such use is made for commercial purposes. Exception is made in cases where such disclosure, transmission or use is required to ensure the administration of justice and/or the maintenance of public order.
In 1990, Brazilian law provided protection for the privacy of children, outlawing the total or partial unauthorized divulgence of a child or adolescent's name, or their police, agency or judicial documents.11 This law was amended in November 2003,12 expressly including the Internet as a way of perpetrating the crime of publishing or disclosing pornography involving children or teenagers.
The Information Technology Law,13 which establishes the guidelines for a national policy concerning technology development, determines as a principle the creation of legal and technical mechanisms in order to protect the secrecy of stored, processed and disclosed data, in the interest of the privacy and security of natural persons and legal entities. The Telecommunications Act of 1997 states as one of its operating principles that users of telecommunications services have the right to have their privacy respected in the usage of their personal data.14
- 1. http://webthes.senado.gov.br/web/const/const88.pdf
- 2. Brazilian Constitution, Title 2, Chapter 1, Article 5, X.
- 3. Id. at XI.
- 4. Id. at XII.
- 5. Id. at XIV.
- 6. Id. at LXXII.
- 7. Federal Law No. 9,507, November 12, 1997.
- 8. Id. at Article 4 ¬ß 1.
- 9. Id. at Article 4 ¬ß 2.
- 10. Federal Law No. 10,406, January 12, 2002.
- 11. Federal Law No. 8,069, July 13, 1990.
- 12. Federal Law No. 10,764, November 12, 2003.
- 13. Federal Law No. 7,232, October 29, 1984.
- 14. Federal Law No. 9,472, July 16, 1997, Book 1, Art. 3, IX. (Telecommunications Act).