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THE UNCERTAINTY OF THE EFFECTIVE DATE OF THE GENERAL DATA PROTECTION LAW – LGPD

The gap between the issuance date of a law and the effective date is called vacatio legis. The reason, in general, for a law not to enter into force on the date of its publication is because the legislator wishes to provide society with time enough to become aware and prepared to respect its content.

The vacatio legis originally attributed by the legislator in the General Data Protection Law - LGPD - Act 13,709, published on August 13, 2018, was 18 months.

However, Provisional Measure 869, issued on December 27, 2018, converted into Act 13,853, issued on July 8, 2019, ended up changing the term of the LGPD and extending the vacatio legis to 24 months. Considering that, the LGPD would come into force on August 16, 2020.

Nevertheless, after the Covid-19 pandemic and the delay with the National Data Protection Agency - ANPD structuring, Bill 1179/2020 authored by Senator Antonio Anastasia was approved by the Senate on April 4, 2020. That postponed the validity of the LGPD to January 1, 2021 and with respect to penalties, these would only be effective from August 1, 2021 and on. As it is an ordinary bill, it would still have to go through a round of voting in the Chamber of Representatives and be approved by a simple majority. The final stage of the process is the approval of the President of the Republic. If not approved or if it is vetoed, the bill returns to Congress for review.

On the other hand, immediately afterwards, Provisional Measure 959 was issued on April 29, 2020, postponing the effective date of the LGPD to May 3, 2021. It is important to observe that this Provisional Measure had only 4 articles of which only the last one referred to delaying that period. Provisional measures are valid for 60 days and can be extended for another 60 days. Within that period, if it is not converted into Law by Congress it expires at the end of the period abovementioned.

Since April 29, 2020, up to that moment 59 amendments submitted to Provisional Measure 959 have been filed, of which 27 amendments refer to this article that changes the LGPD’s effective date.

The interesting thing is that of these 27 amendments, the following suggestions for changing the effective date of the LGPD occurred:

  • 18 Amendments propose the deletion of Article 4 of Provisional Measure 959; hypothesis in which the LGPD would enter into force on August 16, 2020.
  • 3 Amendments propose the effective date of August 14, 2020.
  • 3 Amendments propose the effective date of May 3, 2021 for Articles 33, 34, 35, 36, 38, 40, 48, 51, 52, 53 and 54 and of August 16, 2020 for the other Articles of LGPD.
  • 1 Amendment proposes the effective date of August 1, 2021.
  • 1 Amendment proposes the effective date of August 3, 2020.
  • 1 Amendment proposes the effective date of August 1, 2021 for penalties and January 1, 2021 for the other Articles of the LGPD.

Thus, it remains uncertain which will be the effective date of the LGPD in Brazil.

Whichever is the effective date, companies should not neglect to seek its adequacy in order to avoid risks when the Law effectively enters into force.

Authors: Douglas Leite and Alexandre Dalmasso