January / 2019
On December 27, 2018 the Provisional Measure No. 869 (PM) was enacted, which amends several provisions of the General Data Protection Regulation (GDPR) and creates the National Data Protection Authority (NDPA). The legislative bill that originated the GDPR already provided for the creation of the NDPA, but was vetoed by virtue of possible unconstitutionality. However, many rules of the GDPR depend on regulation and supervision by the federal agency and the alternative found was the institution of the NDPA through the newly issued PM, remedying such a gap left by the Regulation.
The initial expectations were that the agency was created as an independent governmental agency. However, the NDPA was created as an agency of direct administration and, therefore, with a lower degree of autonomy. The NDPA will have attributions to create regulatory standards for the GDPR, making it more effective. It will be the central body for interpretation of issues related to the Regulation and have exclusivity to apply sanctions in the event of processing of data in breach of the legislation. The PM also foresees that the performance of the NDPA be articulated with the National System of Consumer Protection and with other agencies and entities related to the subject of protection of personal data.
Another relevant change presented by PM 869/18 was the increase of the GDPR's vacatio legis period from 18 to 24 months, implying that the organizations and individuals targeted by the Regulation will have until August 15, 2020 to comply with the requirements of the GDPR.
In addition, the PM brought other changes, such as:
Although the PM has entered into force on the date of its publication, its conversion into law is subject to changes and subsequent approval by the National Congress within a maximum period of 120 days. Thus, this proposal shall be appreciated by the new parliamentarians, who will take office on February 1, 2019.
Vernalha, Di Lascio, Mesquita & Associados is at the disposal of its clients for more information on the subject.