The alleged concerns are not restricted to the competitive sphere. Questions have been raised about the use of the processed data, its purpose, the conservation of the rights of the account holders, in the light of the Brazilian Data Protection Law (LGPD), and the absence of clear and accurate information about the use of consumer data. In addition, it is argued that the absence of an opt out mechanism, so that the user can avoid conversations initiated by commercial accounts, may violate their freedom of not wanting to receive unwelcome communications, moreover, being the opposite from the latest “no disturbance” consumer policies, contained in the cooperation agreements signed by the National Secretary for Consumer Defense.

Facebook and WhatsApp are expected to respond to the recommendation later this week. Lastly, the regulatory agencies request that WhatsApp refrain from performing any type of treatment or data sharing data, based on the changes in its new Privacy Policy, scheduled to take effect on May 15^th, as long as there is no positioning from the regulatory bodies.

O conteúdo Bodies require postponement of the implementation of WhatsApp’s new privacy policy aparece primeiro em Grinberg Cordovil Advogados.

In Brazil, we use intellectual property rights to protect trademarks and industrial designs, to register patents, to license software in technology contracts, and many other activities.

Among the current debates on the subject in the country, we can mention Direct Unconstitutionality Action n. 5529, which discusses the constitutionality of art. 40, the sole paragraph of the Industrial Property Law (Law 9.279/1996) that establishes different deadlines for the validity of patents, depending on the delay in analyzing the application by the National Institute of Industrial Property (INPI). The Attorney General’s Office (PGR), the plaintiff of the lawsuit, argues that the sole paragraph of the article harms the production of generic drugs and, therefore, it affects public health. Other parties in the proceeding argue that there is no unconstitutionality in the rule that merely defines the minimum term of protection for the inventor. On April 7, Reporting Minister Dias Toffoli granted an injunction, as requested by the PGR, suspending the application of the sole paragraph only for future patents on medications and health products. The case is scheduled for trial on April 28, and this will be the first opportunity, in which the Supreme Court can take a stand on the subject of intellectual property. In the context of the COVID-19 pandemic, the discussion of health care access makes the decision on patent rights even more important.

Our office has a specialized team that deals with various intellectual property issues, such as the registration of national and international trademarks before the INPI, the analysis of software license agreements, legal opinions and articles, among others. Click here to learn more.

[1] https://www.wipo.int/ip-outreach/en/ipday/

O conteúdo World Intellectual Property Day aparece primeiro em Grinberg Cordovil Advogados.

The expected results from the action plan presented by the ANPD and SENACON are: (i) defining coordinated procedures for addressing problems and complaints involving consumer personal data; (ii) joint supervision of consumer data protection; and (iii) formal organization of information sharing between the authorities. According to the action plan, the partnership involving the ANPD and SENACON will be carried out through meetings between their teams. These meetings will happen on a continual basis, so that all the different topics mentioned above can be worked on.

The cooperation agreement will last for 2 years. However, if both the ANPD and SENACON wish to extend the partnership after this term, it is possible to do so with a 30-day prior notice. Both authorities will have a 15-day time limit after the publication of the agreement to designate a team responsible for monitoring, evaluating, supervising, and inspecting the execution of the agreement. This is the first time the ANPD collaborates with another authority, demonstrating the importance of intervention between data protection and consumer defense.

O conteúdo ANPD and Senacon sign technical cooperation agreement aparece primeiro em Grinberg Cordovil Advogados.

The directors, who will compose the Board of Directors, were nominated by President Jair Bolsonaro, and then they were submitted to the Federal Senate last year.  Among their competencies are the following: to edit regulations and procedures, to establish anonymization standards and techniques and interoperability standards for portability purposes, to deliberate on the content of standard contractual clauses, specific contractual clauses for data transfer, global corporate standards or seals, certificates and codes of conduct, among many other competencies established by article 5 of the Internal Regulations.

The National Council for Personal Data Protection will also have its composition decided by the Presidency, though it shall be based on sectorial recommendations and has not yet been formed. Furthermore, as established in Article 9 of the Internal Regulations, the National Council for Personal Data Protection and Privacy will be regulated by its own internal regulations, in order to execute its competencies.

Access the Internal Regulations of the ANPD here.

O conteúdo Internal Regulations of the ANPD Published aparece primeiro em Grinberg Cordovil Advogados.

Yesterday (December 10, 2020), the Tribunal of the Administrative Council for Economic Defense (CADE) discussed the possibility of using individuals’ income tax returns, fined by the authority, under the premise of adapting the methodology of imposing fines to the income and assets of individuals, thereby bringing forth more proportionality and justice. Commissioner Sérgio Ravagnani, responsible for bringing this thesis to the other members of the Tribunal, argued that Art. No. 45 of the Brazilian Antitrust Law is clear in stipulating that fines for antitrust violations should consider the financial and economic situation of the offender, in line with the National Tax Code. In addition, Ravagnani pointed out that CADE has been criticized by the Organization for Economic Cooperation and Development (OECD), regarding the dosimetry of fines imposed on individuals.

CADE’s President Alexandre Barreto questioned how the procedure and feasibility of applying this approach would be decided, considering there would be many cases, involving dozens of individuals, each with their respective income tax returns. He demonstrated doubts concerning how they would use these income tax returns to increase or decrease the fines. In response, Ravagnani affirmed that the criteria would be decided upon after the verification of the individual’s ability to pay, through calibration of the percentage rate. Therefore, if the individual does not have assets, the percentage rate would be minimal, since it should not be confiscatory. On the other hand, if the individual has considerable assets, the tax rate would be maximal, in order to demonstrate to the offender that it is not worthwhile to continue the practice of anticompetitive activities.

O conteúdo CADE’s Tribunal discusses the utilization of individuals’ income tax returns to verify whether the fine imposed by the authority is confiscatory aparece primeiro em Grinberg Cordovil Advogados.

The names, however, are yet to be approved by the Senate next week.

The nominees are as follows: Waldemar Gonçalves Ortunho Junior, current president of Telebras, who was appointed to the position of President, Joacil Basilio Rael and Arthur Pereira Sabbat, from the Institutional Security Office, Miriam Wimmer, Director of Telecommunications Services at the Ministry of Communications, and Nairane Farias Rabelo Leitão, the only representative from the private sector, who is a partner of a law firm. The mandates indicated were not identical, but for six, five, four, two and three years respectively. This practice is not new, and it contributes in a form so that future substitutions of the Directors not affect the progress of the body or its decision quorum.

O conteúdo Bolsonaro nominates five names to join the Council of the National Data Protection Authority – ANPD aparece primeiro em Grinberg Cordovil Advogados.

However, the Senators considered that the discussion concerning the date of entry into force of the LGPD could not be debated, since it had been previously discussed in the House during the approval of Law No. 14,010/2020. As a result, this extended the date of entry into force of the administrative sanctions provided for in the LGPD to August 01, 2021.

Therefore, the proposed extension voted on yesterday by the House of Representatives, which would cause the LGPD to come into force in December of this year, was withdrawn from the text. The law derived from MP 959 will now move forward for sanctioning or presidential vetting, which should occur within the next 15 days. Once this phase has terminated, the LGPD will come into force.

Following the approval of MP 959, as publicized this Thursday, August 27, Decree 10.747/20 is going to regulate the National Authority for Personal Data Protection (ANPD). The main role of this Authority, which was organized as an agency of the Presidency of the Republic, is to guarantee the provisions set forth by the LGPD. It will also be responsible for applying the sanctions provided for in the law, as of August 2021 forwards.

The Decree outlines the operation of the National Council for Personal Data Protection and Privacy, an advisory body and 9 other bodies of assistance – both sectional and specific, such as the Internal Affairs Office and the ANPD Ombudsman, in addition to the Board of Directors, whose primary function is to regulate the provisions of the Law.

As for now, all eyes are on the pending nominations of the Board and Council members.

O conteúdo The Brazilian Data Protection Law will soon enter into force aparece primeiro em Grinberg Cordovil Advogados.

The article presents an analysis of how the Brazilian antitrust authority is deciding on resale price maintenance’s conducts since the leading case that condemned SKF. Read more here.

O conteúdo Resale Price Maintenance in Brazil: The SKF Paradigm aparece primeiro em Grinberg Cordovil Advogados.

It should be highlighted that several bills that involve the LGPD are currently being discussed in Congress. Earlier this month, the Senate had already approved a bill (PL No. 1179/2020) that changed the effective date of the LGPD to the beginning of 2021. This bill is also running under an urgent regime, as it awaits voting in the Chamber of Deputies.

In addition to extending the entry into force date of the LGPD, the Provisional Measure deals with emergency measures to minimize the economic impacts of the Covid-19 pandemic, establishing the operation of the Emergency subsidy payment for the Employment and Income Preservation, as well as the monthly emergency subsidy, referred to in Provisional Measure No. 936, from April 1, 2020.

O conteúdo Provisional Measure No. 959 postpones the Personal Data Protection Law to May 2021 aparece primeiro em Grinberg Cordovil Advogados.

Data of registered customers – whether individuals or companies, including names, telephone numbers, and addresses of clients – should be made available to the IBGE for the sole purpose of conducting surveys and home interviews during the emergency public health situation, due to the coronavirus (COVID- 19), meanwhile being forbidden to sell or make this information available to third parties. The Provisional Measure also establishes that the database should be eliminated as soon as the emergency, which arose from covid-19 is overcome.

However, there is a clear movement against the Provisional Measure given that Direct Unconstitutionality Actions (ADIs) nos. 6387, 6388, 6390, and 6389 were all proposed on the same day before the Supreme Federal Court by the Federal Council of the Brazilian Bar Association (OAB), the Brazilian Social Democracy Party (PSDB), the Party of Socialism and Liberty (Psol), and the Brazilian Socialist Party (PSB), respectively. They all require preliminary assessment of the lawsuits.

In summary, the lawsuits claim that the Provisional Measure lacks reasonableness and proportionality, in addition to violating constitutional provisions that ensure the fundamental right to human dignity; the inviolability of intimacy, private life, honor and people’s image; data confidentiality; and informational self-determination.

The Provisional Measure should be analyzed by the National Congress in the next 60 days. The ADIs, in turn, must be assessed by the reporting minister to be defined and subsequently ruled by the plenary of the Court.

O conteúdo Provisional measure requires data sharing by telecommunications companies with IBGE aparece primeiro em Grinberg Cordovil Advogados.