Brazil update: Congress sends bill delaying LGPD sanctions but not effective date to President

As previously reported, Brazilian lawmakers have been debating a delay to the LGPD, which was scheduled to come into effect August 15, 2020, in response to COVID-19. The Brazilian Senate first passed Bill 1,179/2020, and Brazil’s President later enacted Provisional Measure 959 (PM 959).

On May 19, 2020, the Brazilian Congress sent to the President’s desk an amended Bill 1,179/2020 (Final Bill) that would maintain the LGPD’s August 15, 2020 effective date but would delay administrative sanctions until August 1, 2021. However, if approved, the Final Bill would still allow the LGPD’s requirements to be enforced through other means.

The journey to the Final Bill was far from direct.

The initial Senate-passed draft of the Bill (Senate Bill) would have delayed the LGPD’s effective date to January 1, 2021, and the administrative sanctions until August 1, 2021. The Senate Bill was passed on April 3, 2020, and was sent to the House of Representatives for consideration.

On May 15, 2020, the House of Representatives amended the Senate Bill (to create the House Bill). The House Bill would have delayed the LGPD’s effective date to May 3, 2021, and would have delayed administrative sanctions until August 1, 2021. The House of Representatives approved the House Bill on May 15, 2020. Because the House Bill amended the Senate Bill, the House Bill returned to the Senate for approval.

On May 19, 2020, the Senate rejected the amended timelines in the House Bill. The Senate instead approved the Final Bill, which would not delay the LGPD’s effective date but would delay only administrative sanctions until August 1, 2021. Under Brazilian legislative procedure, the Final Bill did not need approval from the House of Representatives. Once approved by the Senate, the Final Bill was sent to the President for final approval or veto.

If President Bolsonaro approves the Final Bill, it would effectively render the Provisional Measure void. The LGPD would come into effect on August 15, 2020, along with its attendant compliance obligations. While administrative sanctions would be delayed, other enforcement mechanisms would exist, including the LGPD’s private right of action and the ability of Public Prosecutors to bring actions under other provisions of law.

If President Bolsonaro vetoes the bill in whole or in part, Congress could overturn the veto. PM 959, which delayed the LGPD’s effective date to May 3, 2021, would remain in effect unless it fails to receive Congressional ratification by June 27, 2020.

So when will the LGPD come into effect?

Unfortunately it is not clear.

PM 959 is currently valid law in Brazil. This means the LGPD’s effective date is currently May 3, 2021. But if Congress does not ratify PM 959 by June 27, 2020, the provisional measure will expire and the LGPD will come into effect on August 15, 2020.

If President Bolsonaro approves the Final Bill, then the LGPD will come into effect August 15, 2020, and administrative sanctions will be delayed until August 1, 2021. PM 959 would effectively be void at this point.

If President Bolsonaro vetoes the Final Bill, then PM 959 will remain valid law until June 27, 2020, unless ratified by Congress before then.

For more information, please read our previous posts on Bill 1,179/2020 and Provisional Measure 959.

 

 

Authored by Isabel Carvalho, Daniel Crespo and Paula Pagani.

 

 

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