Brazil’s National Data Protection Authority (ANPD) has finally published its first Statement, providing legally binding guidance on the lawful bases applicable to the processing of personal data of children and adolescents.
In response to suggestions received in the public consultation, the ANPD understood that the processing may be based on any of the legal bases listed in Articles 7 and 11 of the General Data Protection Law (LGPD), as long as they observe the principle of the best interests of minors – and not only on the lawful basis of consent. According to the Statement:
"The processing of personal data of children and adolescents may be carried out based on the lawful bases foreseen in Article 7 or in Article 11 of the General Data Protection Law (LGPD), provided that their best interest is observed and prevails, to be evaluated in the each specific case, pursuant to Article 14 of the Law."
The interpretation adopted by the ANPD is the same as in Statement No. 684 of the IX Civil Law Conference, published last year:
“Statement No. 684: Article 14 of Law No. 13.709/2018 (General Data Protection Law - LGPD) does not exclude the application of other legal bases, if applicable, observing the best interests of the child.”
Thus, any lawful basis may be adopted for the processing of data, taking into consideration the specific case for each processing activity. In addition, when consent is the applicable lawful basis for processing personal data of children under the age of 12, it must be granted by at least one parent or guardian.