ANPD opens public consultation on regulation about Data Protection Officer

On November 7, the National Data Protection Authority (ANPD) opened a public consultation regarding the Data Protection Officer (DPO) role and released a draft Resolution that establishes further rules in addition to those set forth in article 41 of the Brazilian General Data Protection Law (LGPD).

Among other provisions, the draft Resolution establishes an obligation to formally appoint the DPO (and a substitute, who will act when the DPO is absent, impeded or the position is vacant) and expressly authorizes the appointment of an external DPO. 

The draft Resolution also sets forth that the DPO shall not hold a position that entails a conflict of interest, which will be presumed when the DPO also holds a position that involves making decisions regarding the processing of personal data.

In addition, the draft Resolution defines several additional duties for the DPO, such as providing guidance to the organization in the definition of security, technical and administrative measures to protect personal data and in the analysis of contractual clauses regarding the protection of personal data. Furthermore, it determines that the DPO must be able to communicate with data subjects and with the ANPD in Portuguese.

In this sense, the current wording of the draft Resolution may create additional challenges for organizations, given the multidisciplinary nature of the competences and duties that the DPO will have if the Resolution is approved without changes.

The public consultation will be available on the “Participa Mais Brasil” platform until December 7, including the draft Resolution in Portuguese (https://www.gov.br/participamaisbrasil/regulamento-encarregado). The official statement published in ANPD’s website is available in Portuguese at https://www.gov.br/anpd/pt-br/assuntos/noticias/anpd-abre-consulta-publica-para-regulamento-sobre-encarregado-de-dados.

For more information, please contact the heads of our Privacy and Data Protection team, Adriano Chaves and Marcia Issler Mandelbaum.