Publicidade Comportamental: uma proposta de adequação ao ordenamento jurídico brasileiro

Abstract

The processing of personal data enabled human understanding never seen before, and the market understood the economic potential arising from the use of the product of this processing. Behavioral advertising appears among the possibilities leveraged by data processing, a marketing practice that uses personal data to personalize and target advertisements. This practice raises questions regarding violating the right to privacy and the right to personal data protection due to the opacity of the market and technology in the eyes of consumers. Furthermore, the negative impacts of behavioral advertising related to the Brazilian legal system further aggravated the asymmetry intrinsic to the consumer market. Therefore, this Dissertation focuses on unraveling the concept of behavioral advertising and its positive and negative consequences to provide a model of adaptation to the Brazilian legal system. To this end, the work focuses on the historical evolution of advertising to behavioral advertising, establishing the theoretical and normative foundations (constitutional and infra-constitutional) that permeate traditional advertising. Next, considering the need to process personal data, we investigate the legal limits for using personal data, examining national standards for personal data protection, and using European experience. It is proposed that legitimate interest and consent be studied as the most appropriate legal basis for this type of data processing. Minimum requirements will be proposed for processing personal data in behavioral advertising, transferred in compliance with Brazilian legislation, and proposals for good market practices that should be applied to business activity, including techniques and technologies translated into data protection by design and by default. Finally, this paper will explore the right to explanation, provided in the Brazilian General Personal Data Protection Law, highlighted as an essential instrument to guarantee transparency in advertising practices. The methodology adopted is based on the school of Civil-Constitutional Law, which analyzes the institutes of Private Law considering constitutional values. The hypothetical-deductive method is used to analyze legislation and judicial precedents, complemented by bibliographic studies and a multidisciplinary approach. In short, the Dissertation offers a comprehensive analysis of concerns about behavioral advertising, highlighting its ethical and legal challenges and proposing measures to protect consumer rights in the context of the digital economy.