O direito coletivo à privacidade e o tratamento secundário de dados pessoais dos jurisdicionados

Abstract

Cyberspace has changed intersubjective relations and has become an environment for the collection and treatment of personal data by big technology companies, being used by them for purposes of monetization. Such circumstance gives rise to the creation of specific groups of people who may be protected by class action lawsuit. However, as population for this research, people whose data are available in the platform called Processo Judicial Eletrônico (Electronic Court Proceeding) – Pje, as well as in the digital Court Registers related to the Regional Labor Court – 3rd Region and to the Supreme Court of the State of Minas Gerais. To answer whether it is possible to understand the right to privacy as a class action right and, in this regard, to analyze the structure of the right to privacy, comparing them to the rule of publicity of the court acts, is the aim of this study. Although this research has been limited, for purposes of quantitative and qualitative analyses, to the collection of data available in court proceedings which were or are still pending before the aforementioned courts of the state of Minas Gerais, it also seeks to give a new dimension to the legal bases for the protection mass tort class action litigation to privacy of the parties in the courts. The theoretical framework adopted was the conception of Gregório Assagra de Almeida, for whom the class actions rights in parity with the individual rights, both being inserted into the Theory of the Fundamental Constitutional Rights and Guarantees. In the field of procedural law, the new typology of collective disputes conceived by Edilson Vitorelli was selected as a second contribution. The legal-sociological methodological theory, of the legal-interpretative kind of investigation, was adopted. A study based on the conduct of the platform called Jusbrasil, which treats personal data produced within court proceedings and expose them in generic search engines (such as Google Search), without the previous consent of the owners of the data, was conducted. The Brazilian society is not unfamiliar with the possibility of treatment of these data by the big technology legal companies, and it is not possible for the parties govern themselves computationally in an individual manner. This fact generates negative repercussions in the fundamental rights and in the civil liberties of the litigants in the country, who will have their data treated in uncommon profiles and exposed in generic sites. Privacy, being a fundamental right of the democratic bases of Brazil, admits an open and extensive interpretation which authorizes its legal protection through a class action in view of the data massified treatment practices. These go beyond the limits authorized by the Data Protection General Law and by the constitutional spirit focused on the protection of the human condition of the individual. The personal data transactions by private entities which do not seek the owner’s authorization exceed the limits of the Jurisdiction and create an excessive control over the party, causing an embarrassment to him or her for having resorted to the Judiciary Power, through a court proceeding. Therefore, the exposure of the group which is the owner of the data is inevitable, and it may have repercussions in the private lives of each of its members, but calling a collective protection.