Legítimos Interesses no Tratamento de Dados Pessoais: trajetória, consolidação e critérios de aplicação à luz da legalidade constitucional

Abstract

This thesis focuses on the trajectory of exhaustion of consent as the most used legal base for the processing of personal data and the rise of legitimate interests. In the information society, the intense flow of personal data has become an essential activity for the development of the most diverse activities, personal or professional, involving both public and private agents. Combined with new technologies, the widespread use of personal data challenges traditional legal categories, especially regarding the right to privacy and the right to data protection, both of which are constitutionally statured. Previously elevated to the main legal basis capable of allowing the processing of personal data, consent is in crisis, especially considering the reduction of the freedom granted to the data subject to self-regulate. The insertion of legitimate interests in the Brazilian legal system, under the Lei Geral de Proteção de Dados (LGPD), has its origin in the European experience, introduced by strong pressure from the private sector, in the search for greater legal certainty regarding the flow of personal data. Aware of the need to functionalize the constitutional project that elected the dignity of the human person as the value of values, the interpreter is faced with a complex situation in the face of the legitimate interest’s legal base, which brings with it challenges inherent to the application of this fluid and adaptable hypothesis, classified as an indeterminate legal concept. In the Brazilian context, its adequacy as a criterion of lawfulness in the processing of personal data highlights the importance of establishing clear parameters and solid hermeneutical criteria, aligned with the civil-constitutional methodology, to guide its effective interpretation and application. Its correct use must respect the fundamental values of the legal system and promote the weighing of the controller or third parties’ legitimate interests with the fundamental rights and interests of the data subjects, employing as a hermeneutic tool the technique of balancing, considering constitutional legality.