Regulation on Setting and Applying Administrative Penalties under Brazil Enacted by Brazilian DPA
According to BMA Advogados, a law firm in Brazil, the Brazilian National Data Protection Authority ("ANPD") has finally issued a crucial regulation for implementing the Brazilian General Data Protection Law ("LGPD"). This has been a highly anticipated development.
The ANPD approved the Regulation on the Setting and Application of Administrative Penalties under the LGPD on February 27, 2023, through Resolution No. 4/2023.
The LGPD Regulation outlines the process for determining fines, which may reach a maximum of 2% of the data controller or processor's yearly revenue, but is limited to BRL 50 million per violation. Additionally, the regulation establishes other administrative penalties, including public disclosure of the infringement and suspension of data processing activities.
The Regulation gives standards for deciding whether an infringement is minor, moderate, or severe. These standards take into account factors such as the potential harm caused to individuals' material or moral interests, whether the data controller acted intentionally or negligently, and the quantity and nature of the data involved. Additionally, the Regulation outlines factors that can make a violation more or less serious, which the ANPD will consider when deciding on penalties for data processors or controllers. Factors such as cooperation with the ANPD, profit gained from the violation, and past compliance history will all be taken into account.
According to the Regulation, it is possible to enforce penalties during ongoing administrative proceedings for instances of violation that occurred prior to the publication of the Regulation.
BMA Advogados predicts that the ANPD will become more involved now that the Regulation is in effect. We can expect administrative procedures to move ahead at a faster pace and monetary fines to be issued in the coming months.
To get a more in-depth assessment, refer to the complete report provided by BMA Advogados.
