O legítimo interesse na Lei Geral de Proteção de Dados Pessoais: critérios e balizas para sua aplicação

Abstract

The present work aims to analyze the legal basis of legitimate interest, provided for in article 7, item IX, of the Brazilian General Data Protection Law (Law n. 13.709/2018 – LGPD). Faced with the indeterminacy of the legal term, the figure of legitimate interest causes some fear in the legal community and society in the sense of becoming a way for the principles of the data protection law and its terms to be breached by the controllers of personal data. By studying the legal contours of the legitimate interest in the European Union, – which provides the use of this legal basis since Directive 95/46/EC –, from sources such as the text of that Directive and the subsequent Regulation 2016/679, Opinion of an independent European advisory body on data protection and privacy (Working Group on Article 29 of Directive 95/46/EC), guidelines from data protection authorities and decisions of these authorities and the European judiciary, the study seek to contextualize the existence of this legal basis and the way in which it has been studied and applied in this environment. Without intending to indiscriminately transport these premises to the context of Brazilian protection law, it is intended that this analysis serves as an initial basis to proceed with the study of the true contours of the legitimate interest in Brazilian protection law. Analyzing the provisions of the LGPD on the legitimate interest, eminently in its articles 7, item IX; 10 and 37, what is sought is to verify the existence of premises of the law itself to guide the application of the legitimate interest without its use implying in non-compliance with the principles of LGPD or in legal uncertainty for controllers and personal data subjects. In addition to the contours brought by the legislation, the possibility of pointing out other doctrinal, jurisprudential and data protection authorities’ sources that make it possible to give even more concreteness to the legal requirements will also be investigated. From these incursions, it is intended to elucidate the contours of the legitimate interest, aiming to contribute to legal certainty in the application of the aforementioned legal basis, starting from the conception of the relevance of its provision in Brazilian personal data protection legislation, preventing its use from being avoided or the occurrence of abuse and lack of control in its application in the context of the LGPD.