Brazil approved the General Data Protection Law (LGPD) on 14th August 2018, in a move that has been termed as being inspired by the European Union’s implementation of the General Data Protection Regulation (GDPR) on 25th May 2018. The new law is expected to substitute and complement current legal practices by overseeing the handling and use of personal information by both the public and private sectors. The LGPD is scheduled to come into effect on 15th August 2020.
With this in mind, let us explore how LGPD compares with GDPR.
Both LGPD and GDPR apply to any individual or business that processes personal data within their respective jurisdictions, which are Brazil and the European Union, irrespective of where this processing is conducted.
Data Subject Access Requests
Similar to the European Union, data subjects in Brazil are allowed to request access to their information, in addition to having the right to be forgotten under the LGPD.
Data Protection Officers
The GDPR provides for the appointment of a DPO when;
- You are a public entity
- Your primary processes involve large scale, regular, and organized monitoring of persons
- Your core activities comprise large scale processing of unique information classifications connected to criminal prosecutions and offenses
In the event that your company does not engage in such activities, Article 29 of GDPR recommends the appointment of a DPO, regardless, as corporate best practice.
LGPD also requires businesses to appoint a DPO to oversee their data processing activities.
Legal Bases for Data Processing
Under GDPR, your company is subject to six legal bases. They include;
- Explicit consent
- Public task
- Legal responsibility
- Legitimate interest
- Contract performance
- Vital interest
On the other hand, LGPD has four additional bases, expanding the number to 10. The bases in question are;
- Contractual performance
- Legal obligation
- Life Protection
- Health Protection
- Legitimate Interest
- Protection to credit
- Public task
- Research by public study entities
- Exercise of privileges in legal proceedings
When it comes to penalties for violations, the LGPD appears to be lenient to companies found guilty of malpractices compared to GDPR. Essentially, with GDPR, companies can face fines of up to 4 percent of their yearly revenue or 20 million Euros, whichever is higher.
In contrast, LGPD will penalize companies found to violate this regulation up to 2 percent of their yearly revenue from Brazil or 50 million Brazilian Reals, whichever is higher.
Data Breach Notifications
Although both regulations have made notifications about data breaches compulsory, the requirements are different. On the one hand, GDPR has a stringent 72-hour timeline within which companies are obligated to report to Data Protection Authorities about a breach.
In contrast, LGPD does not provide a definite timeline for breach notifications to be made. Instead, it requires this report to be made within a ‘reasonable’ timeframe.