Recognition of the protection of personal data as a fundamental right in Brazil: constitutional amendment 115/2022

There are still constitutional states where the fundamental right to data protection is not recognized, at least as a right expressly affirmed in the Constitution.

In Brazil, it was only recently that the discussion took shape, when it was recognized, by the STF, data protection as an autonomous fundamental right. The decision reignited the discussion on the approval and promulgation of Proposed Constitutional Amendment 17/19, which provided the incorporation of the protection of personal data into the catalog of fundamental rights of the Brazilian Constitution and was enacted through Constitutional Amendment 115/22, adding to article 5 that “the right to protection of personal data is ensured, under the terms of the law, including in digital media”.

As recognized, data protection can no longer be understood as a simple negative exercise of the State in relation to individuals, but as a right of public and private social agents now enshrined in the Constitution.