Reassessing the informational self-determination: the normative debate on personal data protection

• Grant number: 14/08498-0
• Support Opportunities: Scholarships abroad - Research Internship - Master's degree
• Effective date (Start): October 01, 2014
• Effective date (End): March 31, 2015
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal Investigator: Cíntia Rosa Pereira de Lima
• Grantee: Bruno Ricardo Bioni
• Supervisor: Michael A. Geist
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil
• Research place: University of Ottawa (uOttawa), Canada
• Associated to the scholarship: 12/25509-0 - Self-determination: inconclusive paradigms between the protection of rights of personality, the regulation of electronic databases and architecture of the Internet, BP.MS

Abstract

A regulatory model based on the assumption that the individual can control its personal information still prevails worldwide, and for that, the individual's consent on the data is still the touchstone for the personal information protection standardization. However, there is already a debate on this regulatory option, dialoguing with the behavioral economical literature which sets out a series of unfavorable cognitive limitations to this advocated decision making process, which tends to be fallacious. Therefore, it is considered a more paternalistic regulatory model (libertarian), based in laws that interfere with the collection, use, sharing, ultimately, in the personal data processing. In this sense, the Canadian case law concerning the Personal Information Protection and Electronic Documents Act/PIPEDA will be analyzed in order to explain, theoretically, this prescriptive approach (normative framework of personal data protection). Summing up this research aims to demonstrate that the normative standard, such as PIPEDA, does not place total emphasis on the individual's consent for personal data protection; instead it imposes several restrictions on personal data collection and traffic. So, finally, it will analyze how this framework could inspire Brazilian regulation on personal data protection. (AU)