Consentimento na Lei Geral de Proteção de Dados

Abstract

This study investigates the treatment that the General Data Protect Law gave to consent, considering that this law creates a microsystem that must be according, completly, to constitutional commandments, in line with the modern conception of constitutional civil law. A bibliographyc review is carried out on the broader theme about the right to data protection, since the primitive right to privacy, going through informational self-determination, considering the consolidation of society of information. The loss of centrality in the role of consent is evident when the “personal data protection” methodology is consolidated. Under this new paradigm – person-information-circulation-control -, consent is perceived with a dual nature – legitimizer of data flow and instrument to protect the right of informational selfdetermination. The social and the individual demands, as well as the recent normative restructuring of the theme, suggest that the consent has to be revised based on its dual function and considering the context within which the flow of data is legitimized. The consent that serves as protection of personal data depends on the construction of an “info structure” capable of giving in power to regulate the integrity of information flow only in cases where it is, in fact, able to do so. As a result, there is a need for a vulnerability architecture, mainly based in norms of the principle type and in the use of technological tools for the protection of the data subject – this can be seen, generally, in the GDPL text. This revival of consent, with new attributions more appropriate to the capacities of the institute, fulfills old promises brought by adjectivation, making feasible – through a granularized perception – a significant increase in the freedom of the data owner, even allowing the expression of willingness to be more corresponding to the internal intentions of the issuer. Based on this framework, the regulation of consent made by Law nº. 13.709/2018 was submited to an analytical scrutiny in order to investigate the existence of fuzzy points – in a disagreemente with the doctrine that has maintained consent or diagreeing with constitutional system. Some incongruities were identified, interpretive proposals and formal restructuring of the law were presented to conform it to the paradigm of Constitutional Civil Law, giving greater organicity and systematicity to the standardization of consent in the GDPL.