O Direito fundamental à privacidade ante a monetização de dados pessoais na internet: apontamentos legais para uma perspectiva regulatória

Abstract

The object of this dissertation is to cast a legal view over the personal data monetization scenario, intending to suggest regulatory perspectives to such economic activities and aiming to contribute to the protection of the right to privacy. Its starting point is the resulting problematic of this scenario and the concern over privacy protection, which is in grave risk of violation because of the numerous data practices – a risk that is potentialized, mainly, on account of the democratization of virtual social networks. Its main objective is to suggest, in broad terms, regulatory perspectives over economic uses of personal data. Among its specific objectives: elaborate a brief overview on the evolution of the fundamental right to privacy, from its origins to the data protection concerns; approach the data treatment conjuncture, based on the networked society, informational society, cyberspace, digital convergence, dataism and other correlated paradigms; demonstrate through a few examples how personal data monetization occurs in some business models and why the privacy concern arises; make a collection of the laws, bills and normatives that relate to the object, analyzing them under the perspective of personal data monetization and protection; extract from the available legal body regulatory possibilities to the Brazilian personal data monetization scenario, aiming not only to contribute on the protection of privacy, but also its attached values. As a work methodology, it utilizes a critical review of the collected theoretic material: of the legal normatives; the state-of-the-art works and authors in terms of privacy, personal data, informational society and regulation; and of specialized portals news, used as a mean to illustrate certain contemporary situations that the Legal Science is yet to grasp. The work utilizes as a critical premisse in its analysis the imperative of privacy protection in this scenario of data protection. With this intent, the work inserts the right to privacy in the informational society, network society and cyberspace paradigms, contextualizing it, in order to extract from this contextualization a protective content of this right, able to comprehend the inherent complexities of this personal data monetization scenario. After that, considering the previous legal analysis and theoretic constructions, that suggests a scenario of extreme risk to the fundamental right to privacy and the liberties it encompasses (freedom of thought, political freedom, religious, sexual, among others) through practices such as surveillance, that is even called dataveillance by some, aims to propose regulatory guidances fit to approach the data monetization scenario, able to protect the privacy of the data subjects. The work indicates certain general, broad and perennial propositures, aiming to orient the State procedures: as an example, the need of a strong State presence in these services regulation, the praise of principles such as the informational self-determination and free consent, and a regulatory performance more based on the concept of privacy by design. It concludes, in spite of the Brazilian General Data Protection Regulation publishing, stressing the need to create a Data Protection National Authority, capable of centralizing, organizing and empowering the enforcement of the national legislation, as well as suggesting a regulatory proceeding more based on the risk perspective and the Lawrence Lessig’s “code is law” perspective.