Dados sensíveis na Lei Geral de Proteção de Dados Pessoais: mecanismos de tutela para o livre desenvolvimento da personalidade

Abstract

The free development of the personality is increasingly related to technological advances that are associated to a fragmentation process of the person in personal data. Whereas represent personality, personal data gains progressive importance for various structures in the society, as the capacity for extracting value from data increases. The protection of personal data becomes a central concept to privacy, although not limited to it, considered its objectivity and collective paradigm as a protection form of socially shared values. As theoretical reference, we start from Stefano Rodotà's perception that among personal data are highlighted the sensitive data, characterized by the discrimination potential and for being associated with the principle of material equality. Given the centrality of the person in the Brazil’s legal framework, the purpose of this research was to understand, based on a predominantly qualitative analysis, the safeguard mechanisms for sensitive data provided by the Brazilian General Law on Data Protection – law n. º 13.709 of 2018. Therefore, we developed a comparative approach to the general framework of personal data in order to verify if the protection offered to sensitive data is significantly more protective. The European General Data Protection Regulation has been used complementarily to the research. Despite the recognition of limitations in the sensitive data categorization, six specific safeguards mechanisms were identified, which are a more qualified consent, restricted legal authorizations for processing sensitive data, the extension of the sensitive data framework for the processing of personal data that can reveal sensitive data, the possibility of limitations at shared use of sensitive data for economic purposes by the Data Protection Authority, additional limitations for processing sensitive data related to health and special technical standards of security and confidentiality for sensitive data. The investigation is concluded by corroborating the initial hypothesis that the Brazilian General Law on Data Protection establishes a sensitive data framework significantly more protective than the general framework, contributing as an important vector for the fullfilment of the protection of the person in relation to its data in the Brazilian scenario.