2022 was marked by an increase in the interest of Brazilian citizens in the field of data protection. Such growth was significant – according to Google Trends, the topic was heavily searched for in Brazil for several consecutive months.  Listed below are some of 2022´s events that marked the data protection scenario:  

The recognition of Data Protection as a Fundamental Right, after the approval in the National Congress of the Constitutional Amendment No. 115/2022, was an essential achievement for the legal community. Now, formally, data protection has constitutional support and, in the words of Waldemar Gonçalves, chief-director of the Brazilian Data Protection Authority, the inclusion allows “greater legal certainty to the country in the application of the Brazilian General Data Protection Law, attracting even more international investments to Brazil”. 

In addition, the National Data Protection Authority (ANPD) was transformed into an autarchy of a special nature, with its own assets, administrative and budgetary, technical and decision-making autonomy. The change was welcomed by jurists, who celebrated the power of self-management conferred to the agency.   

The ANPD also had a quite remarkable performance in 2022, with the publication of several technical communications, guidelines, and rules, following the educational and orientative posture also adopted in 2021. Some of the relevant publications were: 

(i) the CD/ANPD Resolution No. 2, which regulates the posture to be adopted towards small processing agents in view of the LGPD guidelines. 

(ii) the Orientative Guide for the Treatment of Personal Data by the Public Sector to assist public entities and organs in the adaptation and implementation activities of the LGPD in the government.

(iii) the second version of the Orientative Guide for Definitions of Personal Data Processing Agents and the Data Controller, which updated concepts mentioned by the LGPD such as controller, data controller and operator.  

(iv) the Guidance on Cookies and Data Protection, with the aim of informing and educating users about cookie technology and good practices to be employed with its use.  

2022 was also marked by the encouragement of social participation in the ANPD’s regulatory agenda – there were several public hearings and consultations:

(i) the technical meetings regarding the input for the preparation of a draft of the regulation on the Data Protection Officer (DPO);

(ii) consultation for obtaining subsidies for the preparation of the regulation on the international transfer of personal data;  

(iii) consultation for preparing the Regulatory Agenda for the biennium 2023-2024; 

(iv) consultation for subsidies for the enunciation of legal hypotheses applicable to the treatment of personal data of children and adolescents; and 

(v) the public consultation and public hearing on the draft resolution that approves the Regulation of Dosimetry and Application of Administrative Penalties. 

The topic of artificial intelligence also starred in 2022. The substitute text to Bill 21/2020, prepared by the Jurists’ Commission of the Federal Senate, was delivered on December 6th, 2022. While the original text emphasized general principles and less practical applicability, the substitute text included mentions of concrete duties to be observed by AI providers and operators.  

It was also in 2022 that the new Cryptoassets Law (Law 14.478/2022) was sanctioned. The bill was sanctioned after 7 years of discussion and is an unprecedented achievement — it includes a definition of cryptoassets under Brazilian law, amends the Criminal Code by defining a new type of fraud, and outlines the main guidelines related to the topic.  

In short, we can say that 2022 was a busy year for topics relating to Data Protection, Artificial Intelligence and Cryptoassets. There was also great movement in the fields of games, NFTs, blockchain, and of course, the metaverse.

We are looking forward to the next chapters of 2023, especially considering the new digital agenda proposed by the elected president, which we will briefly discuss below.

The New Brazilian Government´s Digital Agenda  

President Luiz Inácio Lula da Silva´s new government has defined the theme of digital inclusion as one of its main objectives, with a special focus on amplifying Internet access and the democratization of its benefits. In the words of the new Minister of Communications, Juscelino Filho, with the expansion of Internet access “we are facing an unmissable chance to improve the living conditions of many Brazilians, generating business and income (…)”. It is expected that significant attention will also be given to the digitalization of schools and public services, as well as the training of professionals in field of technology. 

Considering this scenario, the Secretariat of Digital Policies was created, linked to Secom (Secretariat of Social Communication), to centralize the agendas involving policies to be implemented in the Brazilian digital environment. According to decree no. 11. 362/2023, some of the competencies of the Digital Policies Secretariat are the following: formulate and implement public policies to promote freedom of expression, access to information and to confront misinformation and hate speech on the Internet; support measures to protect victims of rights violation in digital communication services; formulate and implement public policies to promote the welfare and the rights of children and adolescents in the digital environment; formulate and promote interaction with national and international organizations.

Furthermore, President Lula’s government has released 13 proposals for digital transformation with social inclusion, seeking to “face the challenges presented by digital technologies and explore the new opportunities they bring to all segments of technology”. The proposals presented are as follows: digital inclusion and quality internet for all; digital training (digital literacy); training the professional of the future; first job in digital technologies; quality digital public services accessible to all; digital industrialization and entrepreneurship; smart, inclusive, and sustainable cities; government procurement to leverage Brazilian information and communication technology companies; srengthened public information and communication technology companies; innovation based on open technologies, open data, and free software; protection of Brazilian citizens’ and companies’ data against fraud, theft and unauthorized international transfer; cyber defense; and artificial intelligence with ethics and transparency.   

The proposals reflect the ambition to not only provide quality internet access to Brazilian citizens, especially to places that serve as hubs for connectivity — such as schools, health and safety units, public agencies, and cultural centers, but also to empower the population. The advancement in learning digital skills, with special focus on the training of professionals in the technology fields will also be targeted. In the scope of public administration, the proposals highlight the improvement of public services provided on the internet, facilitating their use and efficiency. Smart cities are also in the spotlight, especially regarding the use of applications for accessibility, mobility, security, housing, health, and environmental education. 

Without a doubt, as it has happened in the last 25 years, we will be present in the construction of the law of new technologies in Brazil. And we will continue willing to guide and walk this path together with our clients and partners.

An excellent 2023 to all!