Civil Responsibility in the General Personal Data Protection Law and the Hand Rule A Responsabilidade Civil na Lei Geral de Proteção de Dados Pessoais e a Regra de Hand Responsabilidad Civil en la Ley General de Protección de Datos Personales y la Regla de Hand

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Revista Opiniao Juridica
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dos Santos R.M.S.
Leitao A.S.
Wolkart E.N.
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© 2022 by the authors.Objective: This article proposes to investigate the issue of civil liability for damages arising from the processing of personal data, under the terms and limits in which it is regulated by Federal Law No. 13.709, of August 14, 2018, known as the General Law of Personal Data Protection (LGPD). The central question to be answered, as it is not clearly defined by the infra-constitutional legislator, says with the type of civil liability provided for in the LGPD, whether objective or subjective. It is intended to analyze, in addition, whether Hand's rule, formulated by the American magistrate Learned Hand, can be useful to delimit the responsibility for negligence of agents processing personal data. Methodology: The research method used will be qualitative-deductive, with a view to confirming the hypotheses raised for the resolution of the exposed problem. For this purpose, the concepts of objective and subjective civil liability will be established, as well as the central aspects of the special legislation related to that liability, notably with regard to agents for processing personal data, will be analyzed. Since the legislator has not clarified the nature of civil liability regulated by the LGPD, it will be investigated whether the processing of personal data can be included in the list of risky activities, attracting the incidence of art. 927, sole paragraph, of the Brazilian Civil Code. Results: A relationship was found between civil liability provided for in the law protecting personal data and Hand's rule, suggesting that the understanding of the American judge Learned Hand can be useful for the delimitation of civil liability arising from the processing of personal data. It was also evidenced that the processing of personal data is a multiple activity, not always capable of being included in the area of risky activities. Contributions: Use of the Hand rule as a useful criterion to assess the civil liability of personal data processing agents in cases of negligence liability.
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