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In brief

On 26 April 2024, the Brazilian Data Protection Authority (ANPD) published the Resolution CD/ANPD no. 15 which approved the Regulation on Notification of Security Incident (“Regulation“). Such Regulation sets forth the mandatory procedures that data controllers must follow when notifying security incidents to ANPD and to personal data subjects. 

According to Law No. 13,709/18 (Brazilian General Data Protection Law, or LGPD), the controller must notify the occurrence of a security incident that may give rise to relevant risk or damage to data subjects not only to ANPD, but also to the data subjects. According to the new Regulation, the deadline for notifying the incident, both the ANPD and data subjects, is three (3) business days, counted from the date on which the controller became aware that the incident affected personal data. If such deadline is not respected, the reason for the delay in notification must be justified.


Contents

  1. Definition of risk or relevant damage to personal data subjects
  2. Communication of the security incident to the ANPD and to data subjects
  3. Obligation to record the security incident

Some of the Regulation’s key aspects are:

Definition of risk or relevant damage to personal data subjects

The Regulation sets forth a definition for when a security incident may give rise to relevant risk or damage to data subjects. Incidents involving sensitive personal data; data relating to children, adolescents or the elderly; financial data; authentication data in systems; data protected by legal, judicial or professional secrecy; or large-scale data – are on the list of those that may give rise to relevant risk or damage to data subjects.

Communication of the security incident to the ANPD and to data subjects

The notification to ANPD must be made by using an electronic form. Among the information that must be included in the notification, we highlight a detailed description of the incident, the types of data compromised, the number of affected individuals, the security measures adopted before and after the incident, and other information described in the Regulation.

ANPD may also request new information about the security incident from the controller at any time, including the record of the processing operations of the personal data affected by the incident, the data protection impact assessment (DPIA) and the incident handling report.

As regards the notification to data subjects, the Regulation sets forth the minimum information to be included in such notification and highlights that simple language should be used. If it is possible to identify those affected, notification should also be direct and individualized. 

Please note that small processing agents will have their deadlines doubled for reporting and supplementing information, under the terms of Resolution CD/ANPD No. 2 of 27 January 2022.

Obligation to record the security incident

The Regulation also sets forth the obligation for the controller to keep a detailed record of the security incident for a minimum period of five (5) years from the date of the record, including those events not reported to the ANPD and the data subjects.

Finally, the Regulation sets forth additional provisions governing the process of notifying a security incident to the ANPD, including who can initiate it and how the process can be terminated.

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Author

Flavia Rebello joined the Firm in 1999. She is a partner in the Intellectual Property, Technology and Data Protection Team. Her practice includes data protection, licensing, sourcing and transactions, franchising and e-commerce and Internet. She has a wide breadth of experience in drafting, negotiating and reviewing agreements involving intellectual property, including supply of technology, trademark license, patent license, franchise, copyright license, software license and distribution, SaaS outsourcing. She also has expertise in data protection and privacy issues, including implementation projects, review of policies, and data breaches. Legal advice in various aspects of e-commerce, Internet and social media.
*Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.

Author

Flavia Amaral is a Partner at Trench, Rossi e Watanabe Advogados, Sao Paulo office.
*Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.

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