BRAZIL Law and Practice Contributed by: Japyassú Resende Lima and Fabiana Lopes Pinto Santello, Lopes Pinto, Nagasse Advogados
1.8 Enforcement Proceedings and Fines Investigative actions within the scope of the ANPD begin with the General Coordination of Inspection (CGF), and from there unfold within a very specific procedure. A complaint, a news item or an event of public knowl - edge can start an investigation. At this stage, the ANPD is presented with a “cold fact”, raw material for analysis. The next stage is the preparatory proce - dure, which, even though it is not mandatory, allows the ANPD to collect preliminary elements to support a potential PAS. The next step is the collection of evidence by the Regulator’s technical team, which searches different sources for the material necessary to “instruct” the investigation process. Subsequently, the party being investigated, who may be a personal data processing agent, is notified and has ten busi - ness days to respond. According to the LGPD, different penalties can be applied to cases of violation of legal rules on personal data. The sanctions list (LGPD, Article 52) includes: • warning; • fines of up to 2% of the revenue of the private legal entity, group or conglomerate, limited, in total, to BRL50 million per infraction; • daily fines, subject to a total limit (see previous bullet); • publication of the infraction; • blocking of the personal data to which the infrac - tion refers until it is regularised; • deletion of the personal data to which the infringe - ment refers; • partial suspension of the operation of the database to which the infraction refers; • suspension of the exercise of the personal data processing activity to which the infringement refers; and • partial or total prohibition of the exercise of activi - ties related to data processing. As for the criteria for setting penalties, the legislation provides that the seriousness and nature of the infrac - tion, the size of the offending agent, the advantage obtained or intended, recidivism, the co-operation of the agent, the mitigation measures adopted by
General Coordination of Inspection (CGF), the focus of this process is to evaluate, analyse and determine the level of compliance with the General Data Protection Law by processing agents, and may have a preventive or repressive nature. The sequence is: • the investigation can start with reports from data subjects, notifications of security incidents, impact reports or sample inspections; • the ANPD notifies the processing agent to pre - sent information, evidence, and proof, which may include document collection and even local audits; • the ANPD verifies the consistency of the respons - es, and some measures, especially prevention, can be adopted at this stage; • opening of an Administrative Sanctioning Proceed - ing (PAS), if the irregularities continue or are suf - ficiently serious; • establishment of the PAS and notification of the investigated party; • production of evidence and analysis of facts by the technical area of the ANPD; • the processing agent can present their defence; • decision on the application of sanctions, with the possibility of appeal; and • deadline for the investigated party to appeal. The issue of binding status still generates debate, but in general it is understood that the ANPD’s decisions are binding, albeit in a stricter sense. This means that they bind personal data processing agents (control - lers and operators) and are definitive in the admin - istrative sphere, after the applicable appeals. How - ever, the “atypical” binding, the one referred to other spheres of power or to agents who did not partici - pate in the administrative process, remains debatable. This is the case, for example, for ANPD investigations shared with the Administrative Council for Economic Defense (CADE), whose use could inform the internal proceedings of this Council on anti-competitive prac - tices. Although such co-ordination exists, the binding effect, due to the lack of essential legal prerequisites, is not yet fully mandatory in these cases.
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