IV. Governance issues
In addition to laws specifically addressing individual privacy rights and data protection, Brazil has apparently unrelated laws and treaties that have privacy implications. The Brazilian national policy on access to government information1 grants individuals the right to receive information of general or individual concern. However, the right is self-limited by individual privacy: "the inviolable intimacy, private life, and honor and image of people."2 According to the Brazilian Constitution, "every citizen is granted the right to receive, from public entities, information of his/her personal interest, or of general or collective interest, which shall be provided on the terms established in the law."3 The Brazilian Constitution also determines that access to such information may be denied where secrecy is required to ensure the security of society or the Brazilian State. The law provides for such exceptions4 and has established a new specific body, the Commission for the Verification and Analysis of Secret Information, composed of ministers, in order to verify the adequacy, necessity, and possibility of disclosure concerning personal data of a top secret nature.
Further, Brazilian national administrative policy on the safeguarding of confidential data, information, documents and materials5 considers as "secret documents" not only any data whose unrestricted access could constitute a risk for the security of Brazilian society or its government, but also any data whose secrecy may be required in order to preserve an individual's privacy, intimacy, honor or image. Access to this kind of information is restricted, classified according to specific rules, and provided only on a "need-to-know" basis. Access may also be made available to citizens, as regards their own personal information, or information of their particular interest, or of collective or general interest, by means of a request to the competent governmental agency. Decisions denying such requests shall be based on a reasonable justification.
The Constitution holds that the Federative Republic of Brazil will act internationally according to the "prevalence of human rights"6 and that "no one will be subject to torture, nor to inhuman or demeaning treatment."7 Brazil signed the United Nations Convention on Torture (1984) on September 23, 1985, and the American Convention on Human Rights8 on September 25, 1992. The latter provides that every person has "the right to have his honor respected and his dignity recognized." Additionally, "no one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation." According to the convention, "everyone has the right to the protection of the law against such interference or attacks." Also, Brazil recognizes the competence of the American Court of Human Rights9 for interpretation and judgment of human rights cases, subject to international reciprocity.
Brazil participated in the XIII Ibero-American Conference held in Bolivia. The results of this meeting were reflected in "Santa Cruz de La Sierra Declaration," that recognizes data protection as a fundamental right.10 Brazil took part in the meeting and signed the Declaration; this was the first time the term "data protection" was present in an international document that Brazil helped to edit.
Brazil's first attempt to regulate data protection occurred after receiving a proposal for a Treaty on Data Protection for the countries in the Mercosur.11 Since then, some government agencies have begun to work on drafts bills regarding data protection.
- 1. Federal Law No. 8,159, January 8, 1991, Chapter 1, Article 4.
- 2. Id.
- 3. Brazilian Constitution, Title 2, Chapter 1, Article 5, XXXIII.
- 4. Federal Provisional Measure 229, December 9, 2004 and Federal Decree 5,301, December 9, 2004.
- 5. Federal Decree No. 4,553, December 27, 2002.
- 6. Brazilian Constitution, Title 1, Article 4, II.
- 7. Brazilian Constitution, Title 2, Chapter 1, Article 5, III.
- 8. http://www1.umn.edu/humanrts/oasinstr/zoas3con.htm
- 9. Legislative Decree No. 89, December 3, 1998; Decree No. 4,463, November 8, 2002.
- 10. http://www.cumbresiberoamericanas.com/ant/docs_pdf/decla_Santa_Cruz_de_l...
- 11. Mercosul (or Mercosur) is a Regional Trade Agreement (RTA) between Brazil, Argentina, Uruguay, Venezuela, and Paraguay.