Dados pessoais sensíveis: uma análise funcional da categoria e das hipóteses de tratamento

Abstract

As the sensitivity of personal information increases, the possibilities of data subjects suffering undue interferences in their freedom and unlawful discrimination become greater. Taking this into account, it was necessary to establish a special category of information: Sensitive Personal Data. The processing of sensitive data should be more restricted, and bear increased guarantees and protections. In the Brazilian General Data Protection Law, the legislation established a list of the specific legal basis for the processing of sensitive personal data as well as technical and legal protections aimed at ensuring extended guarantees. In the present thesis, the study was carried out with an emphasis on a functional analysis of the referred category and the requirements for its processing in LGPD. To this end, there was an analysis of national doctrine, jurisprudence, and legislation, as well as European content, when especially focused on the General Data Protection Regulation. Thus, a study was carried out on the function of the category of sensitive data and its foundations, namely, the principles of free development of personality and non-discrimination. Then, the possibility of qualifying some data as highly sensitive was discussed, due, for example, to the hypervulnerability of their data subjects and the specific content they present. The types of sensitive data were also analyzed, within a dynamic and contextual approach. Afterward, normative discipline applicable to the processing of sensitive personal data was developed, focusing on the legal basis established in the LGPD. Finally, specific issues related to security and good practices with sensitive data were presented, such as the application of privacy by design, the hypotheses for developing data protection impact assessments, and questions about the termination and storage of such data.