Sebrae proposes modifications in draft that offers with sanctions for violations of the LGPD

Sebrae proposes modifications in draft that offers with sanctions for violations of the LGPD

Sebrae, in defense of small businesses, contributed to the public consultation opened by the National Data Protection Authority (ANPD) regarding the resolution that will establish the Regulation of Dosimetry and Application of Administrative Sanctions as a result of violations of the General Data Protection Law Personnel (LGPD). The new measures, as provided for in the draft text, if effectively applied by the ANPD, can directly impact the sustainability of small businesses.

In its contributions, based on a technical note prepared by the law firm Silveira & Unes, Sebrae contests and suggests improvement of some points presented by the ANPD draft, mainly in relation to those that provide for the application of fines, in view of the size of the economy of micro and small companies.

The Person in Charge of Personal Data Processing at Sebrae Nacional, also called Data Protection Officer (DPO), Diego Almeida, highlights that the institution’s positioning is important to guarantee differentiated treatment for small businesses. “Sebrae’s contributions, if accepted, will have a relevant impact on the activity of micro and small companies throughout Brazil.” It is also important to note that the Permanent Forum of Micro and Small Businesses of the Ministry of Economy (FPMPE), of which Sebrae is a permanent member, formulated contributions to be sent to the ANPD via letter.

Among the changes suggested by Sebrae in the ANPD Draft is the need to adopt a previous educational and guidance stage for micro and small companies, with an indication of a deadline for the adoption of corrective measures, without immediate sanction. That is, if any irregularity is identified, the small-scale treatment agent must first be provoked to regularize it and, only from the verification of its inaction, would the ANPD be able to proceed with the imposition of a warning and subsequent sanctions ( more serious).

Another point that draws attention in the ANPD Draft is that, when establishing the concept of “corrective measures”, the ANPD says that they are measures whose purpose is to “correct the infraction and bring the violator back to full compliance” with the GDPR However, the corrective measures relate only to a certain infraction or to a certain inadequate treatment of personal data, and not necessarily to the company’s complete performance in relation to its personal data processing activities (such as governance programs, technical and administrative measures, among other elements). Thus, as proposed by the Authority, when saying that the offender will be brought back to “full compliance”, the draft suggests that the ANPD’s performance, within the scope of the sanctioning administrative process, will potentially involve the analysis of various aspects of compliance with the legislation. protection of personal data, in addition to those strictly related to the infringement found. Therefore, one of Sebrae’s contributions was to suppress the expression “full”, in art. 2, IV, of the draft.

Sebrae also differed from the draft in relation to the calculation of the fine amounts imposed by the ANPD and requested a correction in the text to differentiate the fine for an advantage effectively earned by the treatment agent from that intended, that is, not materialized. On the same topic, he also proposed that the fine values ​​be reviewed, since about 97% of Brazilian companies fall under the concept of micro and small companies. Currently, the ANPD Minute provides, in its methodology for calculating fines, values ​​ranging from R$ 1.5 thousand to more than R$ 15.7 thousand, depending on the severity of the occurrence. The Sebrae note suggests that these amounts vary from R$1,000 to R$4,000, so that they become more adequate to the reality of Brazilian micro and small entrepreneurs, and that the sanctioning activity of the ANPD, although important, does not compromise the sustainability of small businesses.

Source: Agência Sebrae

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