Brazil's data protection authority to gain independence from presidential office

Brazil's National Data Protection Authority (ANPD) will gain independence from the presidency. The data protection body was elevated to the special authority status under a provisional measure published today.

According to the text, ANPD will be transformed into an autarchy of a special nature while still maintaining the organizational structure and competences of the law that created it in 2018. The provisional measure notes that, considering the scope of the powers of the authority, which oversees both the public and private sectors, the shift towards becoming an autarchy is legally important to ensure independence. 

The effects of the provisional measure become immediate after its signature, thus giving full administrative and budgetary autonomy to ANPD, which previously had only technical and decision-making autonomy. However, for the measure to be definitively signed into law, it will still require on approval by the Lower House of the Brazilian Congress as well as the Senate.

Brazil's data protection regulations (LGPD) granted the ANPD powers of inspection, sanction, and regulation. The authority has a critical role in the legal framework for the protection of data subjects, which enables the proper use of personal data in public and private contexts.

ANPD's link with the presidential office has been heavily criticized since its inception in 2020. When the Brazilian Constitution was amended to make data protection a fundamental citizen right in February, consumer protection body Idec said the authority's lack of independence was "something that goes against international recommendations for the constitution of authorities on the subject and jeopardizes the necessary supervision of data processing in the country."

After the provisional measure that creates the autarchy is signed into law, the National Data Protection Authority will have the autonomy it needs to fully perform its functions and legal competences. This includes the activities related to the administrative management of the body itself.

According to the ANPD, its independence from the presidency is aligned with government policies and programs, such as facilitating international trade and increasing competitiveness, in addition to bringing relevant impacts to society and companies, providing compatibility with other regulatory regimes around the world.

In addition, the authority noted that the move improves Brazil's readiness for entry into international organizations and blocs, such as the Organization for Economic Cooperation and Development (OECD).

"The transformation of the ANPD's legal nature will enable the Authority to be more capable of prioritizing actions and generating better results for society", the authority said in a statement. "In addition, it will bring greater legal certainty to individuals and organizations, representing an advance in the application of the LGPD, increasing Brazil's international reputation and credibility."