National Congress Approves Provisional Executive Order, Significantly Changing ANPD’s Abilities

This Tuesday, October 18, 2022, the National Congress approved Provisional Executive Order 1.124/2022, which amends the General Data Protection Law (LGPD) and brings significant changes to the configuration of the National Data Protection Authority (ANPD), making it an autarchy of a special nature. 

Now, the ANPD is officially empowered with technical and decision-making autonomy, its own assets, and a legal personality separate from the Presidency of the Republic, which brings strong practical consequences for data protection enforcement in Brazil, such as:

• Higher degree of independence and autonomy for the ANPD.
• Judicial autonomy. Autarchies of a special nature have procedural autonomy, enabling the ANPD to file of public civil actions.
• One more step toward Brazil being recognized as a country with an adequate level of personal data protection. Brazil is not yet considered a country with an adequate level of personal data protection by many countries, including members of the European Union and neighboring countries that already have independent data protection authorities, such as Uruguay and Argentina. The degree of independence and autonomy of the local authority is one of the criteria for characterizing the data protection regime as high.
• Harmonization with the international regulatory landscape. This consequence is linked to the preceding one and is especially relevant for organizations that are concerned with international data flow, especially for commercial purposes. One of the essential criteria for allowing international data transfers by most jurisdictions (such as the European Union) is the level of personal data protection in the country to which the transfer will be made. Even if Brazil is not considered a country with an adequate level of personal data protection, the existence of a strong data protection authority tends to mitigate the need for additional measures required by the European authorities, such as the use of standard contractual clauses. Thus, such recognition will also make it easier for Brazil to participate in the international market’s data flow, which is important for the competitiveness of the Brazilian market.
• One step closer to becoming a member of the Organization for Economic Cooperation and Development (OECD). One of the most crucial points made in the Brazilian Digital Transformation Review Report, published by the OECD with the aim of enhancing data protection in the country, is the ANPD’s independence. Thus, by paying attention to the report's recommendations, Brazil is closer to becoming a member of the Organization, a current goal of the federal government's.