Proteção de dados pessoais no Brasil: os limites da regulamentação e da regulação da LGPD no constitucionalismo digital brasileiro

Abstract

Digital constitutionalism determines the adoption of definitions and elements of digital law into the constitutional system. For this reason, the contemporary theme of personal data protection, specifically in the context of the emergence of the digital government, must be addressed by the constitutional text, albeit through the reforming derived constituent power. On this path, Law nº 13.709/2018, together with Constitutional Amendment nº 115/2022, which included the protection of personal data in the constitutional list of fundamental rights and guarantees, introduced into the Brazilian legal system the systems of regulation and governance of the protection of personal data in order to ensure data governance in the public and private sectors. The present work aimed to analyze, within the context of digital constitutionalism, the LGPD regulation and governance limits in the public and private sectors. This work made use of an exploratory methodology, and normative analysis to investigate the regulatory system and to analyze concrete cases that gave rise to state regulation. Therefore, it was concluded that, given that part of the regulation of personal data matters is delegated to the ANPD and to the self-regulation of the entities, the control of the production of normative acts requires greater constitutional density, and definition of parameters of applicability in the constitutional legal order. For this reason, Brazil adheres to digital constitutionalism in favor of guaranteeing the protection of contemporary fundamental human rights from a developmental perspective and to prevent measures adopted by the rentier-financial capitalist system from violating constitutional norms and fundamental rights.