The fundamental right of confidentiality and integrity of IT systems in Germany: acall for "IT Privacy" right in Brazil?

Abstract

The fundamental right to confidentiality and integrity of IT systems was recognized by the Bundesverfassungsgericht (BVerfG) in Germany and responds to the growing need to recognize new rights that are able to properly protect the individual as new technologies continue to develop. In the said scenario, this paper will seek to answer the question: Starting from the premises set by the BVerfG in the ruling rendered on February 27th, 2008, are there similar grounds to sustain the existence of an IT Privacy right in Brazil, regarding the Brazilian juridical scenario, mainly as to data protection? To that end, the paper is divided into four main parts to: (i) assess the fundamentals of the decision rendered by the BVerfG in the case mentioned; (ii) present the privacy and data protection legal scenario in Brazil; (iii) point out how information security is provided for in Brazilian legislation; and (iv) validate whether the premises adopted by the BVerfG are also coherent in Brazil, considering the legal landscape presented. The research is based on a hypothetical-deductive method, through inquiry and bibliographic analysis, grounded both in Brazilian and European doctrine. Lastly, the research concludes in the sense that the Brazilian and German Constitutional Legal Orders are different, not only relating to the way in which new fundamental rights are acknowledged, but also in regard to the privacy and data protection legal culture, which directly impacts the feasibility of a fundamental right to confidentiality and integrity of IT systems.