The General Data Protection Law and the legitimate interest: a proposal of a systematic, comparative and critical analysis of this doctrine

• Grant number: 24/14490-4
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Start date: October 01, 2024
• End date: September 30, 2025
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal Investigator: Eduardo Tomasevicius Filho
• Grantee: Caio Augusto Gusman Garcia
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The advancement of digital technologies has been evident in recent decades, especially in the present century. Today, what can be inferred from this scenario, in essence, is the contrast between (i) the fundamental rights of the individual (right to security, privacy, image, etc.) and (ii) the service providers' own and recurrently hidden intentions, using personal data. In the face of this conflict, the Law was forced to adapt.In Brazil, this movement culminated in the enactment of the General Data Protection Law (Law nº 13,709/2018). Among the legal hypotheses provided for in it for the use of users' personal data, there is the legitimate interest of the controller or third party, which gives rise to the processing operation despite the consent of the holder of the information collected, except in cases of potential or actual injury to fundamental rights and freedoms.What, however, is the very meaning of legitimate interest, above all? Where does it fit into national and foreign legal systems? How to avoid arbitrariness on the part of the interest holder? How to determine or measure the violation of a fundamental right? How should law enforcers behave in cases of possible excess? It can be seen, therefore, that there are several problems arising from the object under discussion, which denotes its fertile and burning nature.Given this scenario, this research project aims at a systematic, comparative and critical analysis of the institute of legitimate interest, using, for this purpose, contributions in the fields of General Theory of Law, Philosophy, Civil Law, Comparative Law, Constitutional Law, between others. The production will be developed with a focus on the area of ¿¿Civil Law, under the guidance of Associate Professor at the USP Law School, Eduardo Tomasevicius Filho.