First Public Civil Action based on the LGPD

The protocol of the first Public Civil Action (ACP) was announced by the Public Ministry of the Federal District (MP-DF), supported by the General Law for the Protection of Personal Data (LGPD), three days after the legal rule came into force, on 09/18/2020, which had the initial petition dismissed due to the absence of procedural interest, causing a sentence to terminate the process without judgment on the merits.

ACP nº 0730600-90.2020.8.07.0001 to the detriment of a company that supposedly commercialized personal data pleaded for the suspension of the domain and the abstention regarding the availability of data. On the merits, the MP-DF strove for the elimination of all personal data eventually treated in an irregular manner and permanent cancellation of the domain registration.

The specific case concerns, according to the MP-DF, the commercialization on the internet of personal data of Brazilians, such as name, e-mail, addresses and contacts, by a company domiciled in the country. Also, according to the Parquet, it would be possible on the website of said legal entity, the acquisition of personal data segmented by profession and Federative Unit. This information was obtained by investigative investigations carried out by the Special Data Protection and Artificial Intelligence Unit.

In the ACP’s initial petition, the MP-DF organized argumentative reasoning around the MP’s active legitimacy to protect information from personal data holders, covered, in the ministerial perspective, by the diffuse, collective and homogeneous individual protection of rights; interest in acting based “on the existence of injury or threat of injury to a supra-individual interest”; and list of legal rules indicated to demonstrate the legal protection of personal data protection.

As for the LGPD, it is clarified in the piece that “the present action has a preparatory format for a future public civil action for redress of collective damages”, in order to comply with § 3, of article 42, of the LGPD, which provides on this legal mechanism, aimed at holding the controller or operator accountable which may cause harm to others for breach of the legislation on the protection of personal data. In addition, the MP-DF classifies data processing as irregular, supported by article 44 of the LGPD, for hypothetical non-compliance with the legislation.

On 9/22/20, there was a decision to reject the initial petition and dismiss the case without resolving the merits. The decision was based on the lack of procedural interest, since in a consultation carried out on the internet, the court found that the domain mentioned by the MP-DF was under maintenance. Such fact, depending on the decision, would be due to the circumstance that “those responsible for the above-mentioned site must be seeking to adapt their services to the legal rules for the protection of personal data”.

Thus, the decision concluded that there is no procedural interest of the MP-DF, since the maintenance of the site leads to the conclusion that “there was no evidence of injury or threat of injury capable of justifying the claim for injunctive relief deducted in the initial, with what the present action becomes useless ”.

Currently, the case records are concluded for the magistrate’s decision, after the MP-DF has filed a statement in which it understood “that the simple act of having the site under maintenance does not rule out the usefulness of the process”, particularly due to the request for the relative initial the elimination of “all personal data treated in an irregular manner”.

By: Wilson Sales Belchior