O legítimo interesse e o compartilhamento de dados pessoais intragrupo societário

Abstract

In the context of digital transformation and development of an information society, the processing of personal data has assumed a central position in the routine activities performed by non-profit institutions, liberal professionals and market agents, including business groups. In this sense, the development of specific rules and regulations on the forms of usage and treatment of personal information has been increasingly perceived as essential, aiming to avoid improper uses which cause damage and violations to the data subjects’ rights. The enactment of the General Law on Personal Data Protection is one of the results of the aforementioned movement. From that moment on, the concept of legitimate interest became regarded as an appropriate legal motivation to authorize the processing of personal data. Observing the above-stated scenario, this present paper aims to investigate the sharing of personal data within the Brazilian legal system, established on the legal basis of legitimate interest (art. 7, IX of Law No. 13,709/2018 - LGPD). As will be further detailed, analyzing the sharing of personal data within a corporate group based on legitimate interest encounters difficulties, especially regarding: i) the absence of functional criteria and express regulation in the Brazilian legal system suitable to regulate such sharing, which leads the interpreter to resort the interpretation of the law and the legal system as a whole, as well as to provisions of foreign law, especially European law; and ii) the large interpretative range of the general clause of legitimate interest, which could be considered as a kind of "carte blanche" granted to the controller or third parties. Thus, this study aims to delineate the interpretative parameters regarding the indeterminate legal concept brought by the LGPD of the controller’s or third party’s "legitimate interest" and ultimately to outline possible functional criteria for situations in which intragroup sharing should be considered legitimate. In short, even in the absence of express legislation, we will seek to demonstrate that intragroup sharing in Brazil seems possible, provided that the weighting test (or LIA) is followed, observing each of the analysis’ stages, according to the axiological unity of the legal system. We expect to present parameters and impose interpretative guidelines for the application of intragroup sharing.