While Brazil’s General Data Protection Law – LGPD and Europe’s GDPR share many similarities, key differences can significantly impact companies, particularly those with European companies that have appointed a global DPO to oversee their Brazilian subsidiaries. Understanding these distinctions is crucial to ensure compliance and avoid costly penalties.
- Mandatory DPO Appointment
In Brazil, appointing a DPO is not optional — it’s mandatory for all controllers that process person data in Brazil (except for small-sized companies that does not process large volume of data). In this so, companies with a global DPO need to ensure that their appointed officer meets the unique requirements of Brazilian law.
- DPO Qualifications and Responsibilities
Unlike the GDPR, the LGPD does not set strict academic or certification standards for DPOs. However, the DPO must have expertise in the Brazilian legislation, including but not limited to the LGPD, Federal Constitution, Brazilian Civil Code, Consumer Protection Code, Internet Bill of Rights, Child and Adolescent Statute, among others and play a vital role in:
- Handling data subject requests and inquiries.
- Communicating with Brazil’s National Data Protection Authority (ANPD), especially during data breaches.
- Advising on data protection policies and ensuring internal compliance with LGPD.
Crucially, Brazilian DPOs are required to operate independently, free from conflicting influences within the organization. This independence is particularly important for global DPOs managing compliance across multiple jurisdictions.
- Key Differences Between LGPD and GDPR
Autonomy: While both laws emphasize the DPO’s independence, Brazilian rules highlight this aspect more stringently, ensuring the DPO’s impartiality within the organization.
Authority Communication: The Brazilian DPO has a direct line of communication with the ANPD, whereas the EU approach can vary by member state. This means that the DPO must speak the local language.
Penalties for Non-Compliance: Brazilian authorities impose severe penalties for failing to appoint a compliant DPO, including fines up to 2% of the company’s revenue in Brazil, capped at BRL 50 million per violation, and even restrictions on data processing activities.
- Steps to Ensure Compliance within LGPD
- Appoint the DPO: Ensure your DPO is formally appointed and fully understands the Brazilian legal landscape.
- Appointing a Substitute DPO: A substitute DPO needs to be formally appointed by the companies to ensure continuity in data protection oversight in case of absence of the DPO.
- Publishing DPO Contact Information: The DPO’s contact details must be published on the Companies websites, ensuring transparency and accessibility for data subjects. The Privacy Notice must also be translated to Portuguese to comply with the transparency principle such as provided in GDPR.
- Ongoing Training: Keep your DPO updated on the latest LGPD requirements and maintain regular contact with the ANPD.
- Internal Protocols: Establish clear procedures for handling data subject requests and security incidents specific to Brazil.
- Routine Audits: Implement regular audits to verify adherence to LGPD regulations.
The nuanced differences between LGPD and GDPR can impact how companies manage data protection in Brazil. European companies with global DPOs should pay particular attention to these distinctions to ensure compliance and mitigate risks. On the other hand, European companies can also appoint local professionals to perform DPO activities in accordance with the LGPD.
The law firm EMERENCIANO BAGGIO & ASSOCIADOS – ADVOGADOS specializes in privacy, data protection, innovation, and technology, helping clients comply with data protection laws and other regulations.
This information is for general purposes and does not constitute legal advice.
