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- SP MP investigates alleged mass shooting on WhatsApp
The intention of the law is to guarantee the security and transparency of citizens’ personal information.
The LGPD defines a series of rules for the use of personal data, those that can identify someone, such as name, CPF and telephone number, among others.
A resolution of the Superior Electoral Tribunal (TSE) at the end of 2019 defined guidelines on electoral advertising on the internet and indicated that the principles of the LGPD must be respected from this election. (read below).
Sending mass messages can generate a fine for candidates of R $ 5,000 to R $ 30,000 or an amount equivalent to double the amount spent, if the maximum limit is exceeded. The amount goes to the party fund (money destined for political parties). There have been no complaints against candidates or parties yet, the TSE said.
The administrative sanctions provided for in the LGPD, such as fines to companies or blocking of the database, will only be applied in August 2021.
See what the General Data Protection Law says:
- the collection and use of personal data must have the consent of the owner, that is, the citizen must give their approval;
- It is necessary to inform for what purposes the information will be used – if a form is requesting data to send advertising campaigns, this must be clear;
- the citizen has the right to know how a company obtained data about him and to request the elimination of that information;
- organizations that store data must adopt security measures to prevent leaks, especially when it comes to sensitive information, such as those that may reveal political or sexual orientation and religious beliefs;
- and in case of leaks, it is necessary to notify the authorities and affected persons.
Candidates will need the prior authorization of each voter before submitting content, according to the TSE. In practice, it means that anyone who has not signed up for election marketing can request to stop receiving this type of content.
“Anyone can demand that the treatment be canceled, that is, that their personal data be removed from the database,” says Paulo Rená, professor of law at UniCEUB, researcher at the group Cultura Digital y Democracia.
Citizens who receive an electoral campaign from candidates or parties without consent or after a request for removal can file complaints.
“If he receives an advertisement for which he has not given his consent, the person can question why he is receiving it. If he does not receive a response, a practical suggestion is to report the violation to the Public Ministry or the Electoral Justice,” says Rená.
In addition to the fine, if the mass shooting is considered a serious act or if there is evidence that it affected the outcome of an election, the candidate can be charged or declared ineligible.
LGPD is worth in this election
The data protection principles of the LGPD must already be followed in accordance with the electoral law. This means that the Electoral Justice will be able to evaluate the illegal acts based on the resolution of the TSE. (read below).
The application of the LGPD rules could be challenged based on an article of the Federal Constitution according to which the laws that alter the electoral process can only be applied in elections that are held after one year of validity. The TSE, however, pointed out that this should not be the case.
The assessment is that the parties are not moving to prevent the application of the law during the electoral period.
TSE says it has not received any lawsuits
TO G1, the Court reported that “to date it has not received any lawsuit requesting a judicial response on the validity of the LGPD in the 2020 Elections”, but that “a Working Group has already been formed within the scope of the Presidency of the Court to evaluate the impacts of the law at the internal level and there are also internal debates about the application in the campaign. ”
The lawyer Rafael Vieira, of the Electoral Law Commission of the OAB-SP, says that the candidacies must follow the principles of the LGPD.
These principles include:
- purpose of data use;
- need;
- transparency;
- safety;
- and non-discrimination.
“When the candidate is going to collect data, [para] to send campaigns or marketing messages it is necessary to follow the principles of the legislation ”, says Rafael Vieira.
Message activation and data collection
One of the principles of the LGPD that the TSE reinforces in its resolution is consent: part of the information can only be used if the holder – in this case, the voter – provides some type of authorization. Voluntary registration on a list, for example, is a permit.
The court also prohibited mass or automated shooting, a strategy that consists of sending messages to several recipients, to telephone numbers collected in large databases.
The hiring of companies to carry out campaigns is allowed, but the candidate or party cannot use company databases to send messages, or buy bases from third parties.
“The work of these companies must be aligned with the LGPD and electoral legislation,” says Rafael Vieira.
Candidates or parties must voluntarily receive a statement of voters’ intent to receive campaign-related messages. You also need to respond to voter requests for transparency.
“The LGPD guarantees the right of explanation, that is, to see the reason for [alguém] receive a message ”, says Paulo Rená.
Candidates and parties must also be very careful with so-called sensitive data. They are those that can cause harm to people if used in bad faith, such as racial or ethnic origin, religious beliefs, political opinions.
A list of party members is considered confidential information, for example, and the information will need to be stored securely to prevent leaks.
Data such as age, gender and location can be used to target political advertising campaigns on social networks, using the tools of the platforms themselves. In this case, the authorization of use is already contemplated by the consent that the user gives to the website.
However, if the campaign creates or manipulates some type of database with information from social networks outside the platform, it is data, and it is necessary that there is a legal basis to authorize this treatment.
Although the administrative sanctions provided for in the LGPD are only foreseen for 2021, the Electoral Justice will be able to evaluate the illegal acts in accordance with the rules defined by the TSE.
“We should look less at the ANPD [Autoridade Nacional de Proteção de Dados] at this time, and see the role of the Electoral Justice ”, affirms Rafael Vieira.
“The Electoral Justice has a series of data protection mechanisms, it can impose fines on candidates, political parties or coalitions that are responsible or beneficiaries of these illegal acts,” he adds.
The São Paulo regional electoral prosecutor, Sérgio Monteiro Medeiros, affirms that “propaganda that violates the law is subject to inhibitory protection (exercise of police power by the electoral propaganda judge) and a fine.”
“As provided in the LGPD, the fine would fall on the national authority. But an infraction in electoral propaganda is the responsibility of the Electoral Justice, which will still have to consider who will be responsible for the sanction in this case,” he said, in a note.
“I consider it reasonable to imagine that in violations of the LGPD, in electoral propaganda, the fine provided for in the LGPD is applied by the Electoral Justice. But I mean that the matter is new and we must see how the Justice will position itself.”
Controversy over the application of LGPD
Although the TSE has a resolution with the guidelines for the 2020 elections, there are conflicts over the application of the LGPD, since the law entered into force in the same year as the election.
Article 16 of the Constitution says that laws that change the electoral process can only be applied in elections that are held after one year of their validity.
This is what the São Paulo Public Ministry (MP-SP) indicated, when consulted by G1. The MP-SP says, however, that there are already rules that establish guidelines for the protection of data for voters.
“The São Paulo Public Ministry recognizes the importance of the application of the LGPD in the 2020 elections, which aims to protect voters and elections, from the use of personal data (protection of data privacy) and that , having knowledge of the candidatures, can cause the imbalance of the claim ”, says the organ through a note.
In addition to the discussion on the applicability of the law to the 2020 elections, by virtue of the principle of electoral annuity (art. 16 of the CF), national legislation and the decisions of the Electoral Justice establish provisions and principles that already provide protection of data to voters, such as the Marco Civil da Internet and Law 9.504 / 97 “, the statement continues.
Experts heard by G1 They consider that the LGPD does not change the electoral process and, therefore, its principles.
“The TSE already positioned itself, in December 2019, by editing and approving the electoral provisions that would be applied in 2020,” says Rafael Vieira.
“At that time, the LGPD would come into effect before the elections. The TSE edited the resolution and included a series of data protection provisions and made explicit reference to the LGPD. In my opinion, the LGPD does not change the electoral process, and the decision that has been taken must be upheld ”, he adds.
For the lawyer Paulo Rená, there are two moments about the application of the LGPD in these elections. “The rights of the voters can be respected right now, but an eventual electoral sanction would be totally unavoidable,” he says.
“The LGPD does not change the electoral process itself, but it defines rules for the treatment of personal data, and there is no justification to exclude the treatment as campaign activities. A citizen could claim their rights if their data is misused, but that could not prevent the candidate from running for office “, he adds.
Parties like PT, MDB and PSL said they are adapting to the LGPD rules for the 2020 elections.
Through a note, the PT adviser said that the party “is organizing to comply with the General Data Protection Law in the 2020 municipal elections.”
The PSL declares that it is “fully complying [a LGPD], even in the party affiliation system. ”
The BMD said that “if there is a law in force, everyone must enforce it, candidates or not.” “As it was approved and sanctioned by constitutional norms, there is no reason to question the legislation.”
