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Brazil

Brazil’s Constitution guarantees those residing in the country access to information; freedom of expression, assembly, and association; the right to privacy; press freedom; and equality. Some of these guarantees are further regulated by federal law. An open internet is regulated by a law that establishes principles, guarantees, rights, and duties for the use of the internet in the country. A law regulating data protection recently entered into force for the purpose of protecting the fundamental rights of freedom and privacy, and the free development of the personality of natural persons.

I. Constitutional Principles

Article 5 of the Brazilian Constitution states that everyone is equal before the law, with no distinction whatsoever, guaranteeing to Brazilians and foreigners residing in the country the inviolability of the rights to life, liberty, equality, security, and property.[1] The law must punish any discrimination attacking fundamental rights and liberties.[2] 

A. Access to Information

The right to information is guaranteed by article 5(XXXIII) of the Constitution, which determines that all persons have the right to receive information in their private interest, or of collective or general interest, from public agencies. Such information must be furnished within the period established by law, under penalty of liability, except for information whose secrecy is essential to the security of society and the state.[3] The Constitution further determines that the law must regulate the forms of user participation in direct and indirect public administration, specifically regulating[4] user access to administrative registries and information about governmental acts, observing the provisions of article 5(X) and 5(XXXIII) of the Constitution.[5]

It is the responsibility of the public administration, as provided by law, to maintain governmental documents and take measures to make them available for consultation by those who need to do so.[6]

Law No. 12,527 of November 18, 2011, establishes procedures to be followed by the Union, states, Federal District, and municipalities, in order to ensure access to information under articles 5(XXXIII), 37(§ 3)(II), and 216(§ 2) of the Constitution.[7]

According to article 5 of Law No. 12,527, the state has the duty to guarantee the right of access to information by objective and streamlined procedures explained in clear and transparent language.[8] Any interested party may request information from the Union, states, Federal District, and municipalities by submitting an application that identifies the applicant and specifies the required information.[9] According to the Law, “[f]or access to information of public interest, the identification of the applicant may not contain requirements that impede the request.”[10] Agencies and public entities must also provide means to receive information requests on their official websites,[11] and are prohibited from requiring applicants to provide the reasons for their requests.[12]

B. Freedom of Expression

Article 5 of the Constitution sets forth several principles related to freedom of expression:

II - no one shall be compelled to do or refrain from doing something except by force of law;

IV - manifestation of thought is free, but anonymity is forbidden;

V - the right of reply is assured, in proportion to the offense, as well as compensation for pecuniary or moral damages or damages to reputation;

IX - expression of intellectual, artistic, scientific, and communication activity is free, independent of any censorship or license;

XIII – the exercise of any job, trade or profession is free, observing the professional qualifications that the law establishes;

XIV - access to information is assured to everyone, protecting the confidentiality of sources when necessary for professional activity;

XLI— the law must punish any discrimination attacking fundamental rights and liberties.[13]

Article 220 further determines that the expression of thoughts, creation, speech, and information, through whatever form, process or vehicle, must not be subject to any restrictions, observing the provisions of the Constitution.[14]

C. Freedom of Assembly

Pursuant to article 5(XVI) of the Constitution, all persons may hold peaceful meetings, without weapons, in places open to the public, without need for authorization, so long as they do not interfere with another meeting previously called for the same place, subject only to prior notice to the proper authority.[15]

D. Freedom of Association

The Constitution states that there is total freedom of association for lawful purposes, but any paramilitary association is prohibited.[16]

E. Right to Privacy

Under article 5(X) of the Constitution, personal intimacy, private life, honor, and reputation are inviolable, and the right to compensation for pecuniary or moral damages resulting from the violation thereof is guaranteed.[17]

F. Press Freedom

As mentioned above, the expression of thoughts, creation, speech, and information, through whatever form, process, or vehicle, must not be subject to any restrictions, observing the provisions of the Constitution.[18] Any legal provision that may constitute an impediment to full freedom of the press, in any medium of social communication, is prohibited, observing the provisions of article 5(IV), (V), (X), (XIII), and (XIV) of the Constitution.[19] Any and all censorship of a political, ideological, or artistic nature is forbidden.[20]

G. Anti-Discrimination

One of the fundamental objectives of the Federative Republic of Brazil is to promote the well-being of all, without prejudice as to origin, race, sex, color, age, or any other forms of discrimination.[21] Repudiation of terrorism and racism are among the principles that govern the country’s international relations.[22]

As mentioned above, article 5 of the Brazilian Constitution states that everyone is equal before the law and that 

I. men and women have equal rights and duties under the terms of the Constitution;
. . .
VIII - no one shall be deprived of any rights because of religious beliefs or philosophical or political convictions, unless invoked in order to be exempted from a legal obligation imposed upon all by one refusing to perform an alternative service established by law;
. . .
XLI - the law must punish any discrimination attacking fundamental rights and liberties; [and]
XLII - the practice of racism is a non-bailable crime with no statute of limitations and is punishable by imprisonment, as provided by law.[23]

The family, society, and government have a duty to ensure that children, adolescents, and youth have the right to life, health, nourishment, education, leisure, professional training, culture, dignity, respect, liberty, and family and community harmony, in addition to safeguarding them against all forms of negligence, discrimination, exploitation, violence, cruelty, and oppression.[24] Regardless of whether born in or out of wedlock or adopted, children have the same rights and qualifications, prohibiting any discrimination with respect to filiation.[25]

1. Law No. 12,288 of July 20, 2010

Law No. 12,288 of July 20, 2010, created the Racial Equality Statute (Estatuto da Igualdade Racial), designed to guarantee to the black population the realization of equal opportunities, defense of the individual, and collective and diffuse ethnic rights, and support for the fight against  discrimination and other forms of ethnic intolerance.[26]

For the purposes of Law No. 12,288, any distinction, exclusion, restriction, or preference based on race, color, descent, or national or ethnic origin whose object is to annul or restrict the equal recognition, enjoyment, or exercise of human rights and fundamental freedoms in the political, economic, social, cultural, or other fields of public or private life is considered racial or ethnic-racial discrimination.[27]

2. Law No. 9,029 of April 13, 1995

The adoption of any discriminatory and restrictive practice for the purpose of accessing or maintaining an employment relationship is prohibited when based on sex, origin, race, color, marital status, family situation, disability, professional rehabilitation, or age, among others, except as necessary to provide labor protections to children and adolescents under article 7(XXXIII) of the Federal Constitution,[28] which prohibits nighttime, dangerous, or unhealthy work for those under eighteen years of age, and any work for those under the age of sixteen except as an apprentice starting at the age of fourteen.

The following discriminatory practices constitute a crime and are punishable with imprisonment for one to two years and a fine:

I - the requirement for testing, examination, expertise, report, certificate, declaration or any other procedure related to sterilization or pregnancy status;

II - the adoption of any measures, of the employer’s initiative, that involve;

a) inducing or instigating genetic sterilization;

b) promotion of birth control, thus not considering the provision of services and family counseling or planning, carried out through public or private institutions, subject to the rules of the Unified Health System.[29]

3. Law No. 7,716 of January 5, 1989 

Under the terms of Law No. 7,716 of January 5, 1989, crimes resulting from discrimination or prejudice based on race, color, ethnicity, religion, or national origin are punishable.[30] The Law further defines the crimes and corresponding punishments resulting from race- or color-based discrimination.[31]

H. Equality

Another fundamental objective stated in the Constitution is to eradicate poverty and substandard living conditions, and to reduce social and regional inequalities.[32]

As discussed above, article 5 of the Brazilian Constitution states that everyone is equal before the law, with no distinction whatsoever, guaranteeing to Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security, and property.[33]

1. Law No. 13,146 of July 6, 2015

The Brazilian law for the inclusion of persons with disabilities (Statute of Persons with Disabilities) was enacted on July 6, 2015, for the purpose of ensuring and promoting the equal exercise of fundamental rights and freedoms by persons with disabilities, aiming at their social inclusion and citizenship.[34] A “person with a disability” is defined as someone who has a long-term physical, mental, intellectual, or sensory impairment, which, in interaction with one or more barriers, can obstruct his or her full and effective participation in society on equal terms with others.[35]

Every person with a disability has the right to equal opportunities similar to others and may not be subjected to any kind of discrimination.[36] Discrimination on the ground of disability is considered to be any form of distinction, restriction, or exclusion, by act or omission, that has the purpose or effect of harming, preventing, or nullifying the recognition or exercise of the fundamental rights and freedoms of a disabled person, including the refusal of reasonable accommodation and provision of assistive technologies.[37]

A disabled person is legally protected from all forms of negligence, discrimination, exploitation, violence, torture, cruelty, oppression, and inhuman or degrading treatment.[38] For the purposes of this protection, disabled children, adolescents, women, and the elderly are considered especially vulnerable.[39]

2. Law No. 12,288 of July 20, 2010

According to article 2 of Law No. 12,288 of July 20, 2010, the Racial Equality Statute, it is the duty of the state and society to guarantee equal opportunities, recognizing that every Brazilian citizen, regardless of ethnicity or skin color, has the right to participate in the community, especially in political, economic, business, educational, and cultural activities and sports, defending their dignity and their religious and cultural values.[40]

In addition to the constitutional rules relating to fundamental principles, rights, and guarantees, and social, economic, and cultural rights, the Racial Equality Statute adopts as a political-legal guideline the inclusion of victims of ethnic-racial inequality, the valorization of ethnic equality, and the strengthening of the Brazilian national identity.[41] It also lists initiatives to promote the participation of the black population under conditions of equal opportunity in the economic, social, political, and cultural life of the country.[42]

The National System for the Promotion of Racial Equality (Sistema Nacional de Promoção da Igualdade Racial) was created[43] to achieve the objectives of the Racial Equality Statute and to implement the federal government’s policies and services designed to overcome ethnic inequalities in the country.[44]

II. Open Internet 

On April 24, 2014, Brazil published Law No. 12,965, which establishes principles, guarantees, rights, and duties for the use of the internet in Brazil and sets forth guidelines for the actions of the Union, the states, the Federal District, and the municipalities in relation to this matter.[45] 

A. Basis for Regulation of Internet Use  

The regulation of the use of the internet in Brazil is based, among other things, on respect for freedom of expression, human rights, personality development, the exercise of citizenship in digital media, plurality and diversity, openness and collaboration, free enterprise, free competition, consumer protection, and the social purpose of the internet.[46] 

B. Rights and Guarantees 

According to Law No. 12,965, internet access is essential to the exercise of citizenship. For this purpose, the Law lists the rights of and the guarantees to internet users, which include, inter alia, the inviolability of intimacy and privacy, and protection and compensation for property or moral damages resulting from such violation;[47] the inviolability and secrecy of the flow of a person’s communications through the internet, except by court order, as provided by law;[48] and the inviolability and secrecy of a person’s private communications that have been stored, except by court order.[49] 

The guarantee of the right to privacy and freedom of expression in communications is a condition for the full exercise of the right to access the internet.[50] Contractual clauses that violate these provisions are null and void, such as those that 

I - imply an offense to the inviolability and confidentiality of private communications, over the internet; or

II - in an adhesion contract, do not offer the Brazilian jurisdiction as an alternative to the contracting party to resolve disputes arising from services provided in Brazil.[51]

III. Data Protection 

Law No. 13,709 of August 14, 2018, provides for the processing of personal data, including in digital media, by a natural person or by a legal person under public or private law, with the objective of protecting the fundamental rights of freedom and privacy and the free development of the personality of the natural person.[52] 

A. Definitions

For the purposes of Law No. 13,709, the following definitions apply:

I - personal data: information related to an identified or identifiable natural person;

. . .

X - processing: any operation performed with personal data, such as those referring to the collection, production, reception, classification, use, access, reproduction, transmission, distribution, processing, archiving, storage, elimination, evaluation or control of information, modification, communication, transfer, diffusion or extraction.[53]

B. Application

Law No. 13,709 applies to any processing operation carried out by a natural person or a company (pessoa jurídica) under public or private law, regardless of the medium, the country of its headquarters, or the country where the data is located, provided that

I - the processing operation is carried out in the national territory;

II - the processing activity has as its objective the offer or supply of goods or services or the processing of data from individuals located in the national territory; or

III - the personal data subject to the treatment have been collected in the national territory.[54]

Personal data is considered to have been collected in the national territory where the holder was in Brazil at the time of collection.[55]

C. Exceptions 

According to article 4, Law No. 13,709 does not apply to the processing of personal data

I - performed by a natural person for exclusively private and non-economic purposes;

II - carried out for purposes [that are] exclusively:

a) journalistic and artistic; or

b) academic, applying articles 7 (legitimate purposes) and 11 (sensitive personal data) of this Law;

III - carried out for the exclusive purposes of:

a) public security;

b) national defense;

c) State security; or

d) investigation and prosecution of criminal offenses; or

IV - coming from outside the national territory and that are not object of communication, shared use of data with Brazilian processing agents or object of international data transfer with a country other than the country of origin, provided that the country of origin provides a degree of protection of personal data appropriate to the provisions of Law No. 13,709.[56]

The processing of personal data provided for in article 4(III) must be governed by specific legislation, which must provide for proportional and strictly necessary measures to serve the public interest, observing due legal process, the general principles of protection, and the rights of the holder provided for in Law No. 13,709.[57]

Private companies are prohibited from processing the data referred to in article 4(III), except in procedures involving public companies, which will be the subject of a specific report to the national authority and must observe the limitation imposed in article 4(§ 4) of Law No. 13,709 (which limits the amount of personal data that can be processed by a private company).[58] 

D. Principles 

The activities of personal data processing must observe good faith and the principles listed in article 6 of Law No. 13,709, which include, but are not limited to, purpose, adequacy, transparency, security, and accountability.[59] 

E. Consent

Article 7 defines the situations where the processing of personal data can be carried out, including, inter alia, with consent of the person and the fulfillment of a legal or regulatory obligation by the controller.[60]

F. Entry into Force

Articles 55A to 55-L, 58A, and 58B of Law No. 13,709 entered into force on December 28, 2018. Articles 52 through 54 will enter into force on August 1, 2021.  The remaining articles entered into force in August 2020.[61]

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Prepared by Eduardo Soares
Senior Foreign Law Specialist
October 2020


[1] Constituição Federal [C.F.] art. 5, https://perma.cc/M27W-YDDQ.

[2] Id. art. 5(XLI).

[3] Id. art. 5(XXXIII).

[4] Id. art. 37(§ 3). 

[5] Id. art. 37(§ 3)(II). Article 5(X) determines that personal intimacy, private life, honor, and reputation are inviolable, guaranteeing the right to compensation for pecuniary or moral damages resulting from the violation thereof.

[6] Id. art. 216(§ 2).

[7] Lei No. 12.527, de 18 de Novembro de 2011, art. 1, https://perma.cc/2MX7-L8VP. Decree No. 7,724 of May 16, 2012, regulates, under the federal executive branch, procedures for ensuring access to information and for the classification of information under access restriction, observing the degree and term of confidentiality, according to the provisions of Law 12,527.  Decreto No. 7.724, de 16 de Maio de 2012, art. 1, https://perma.cc/8RC7-VB4P.

[8] Lei No. 12.527, art. 5.

[9] Id. art. 10.

[10] Id. art. 10(§ 1) (all translations by author).

[11] Id. art. 10(§ 2).

[12] Id. art. 10(§ 3).

[13] C.F. art. 5.

[14] Id. art. 220.

[15] Id. art. 5(XVI).

[16] Id. art. 5(XVII).

[17] Id. art. 5(X).

[18] Id. art. 220.

[19] Id. art. 220(§ 1).

[20] Id. art. 220(§ 2).

[21] Id. art. 3(IV).

[22] Id. art. 4(VIII).

[23] Id. art. 5.

[24] Id. art. 227.

[25] Id. art. 227(§ 6).

[26] Estatuto da Igualdade Racial, Lei No. 12.288, de 20 de Julho de 2010, art. 1, https://perma.cc/CFQ6-B7V6.

[27] Id. art. 1(sole para.).

[28] Lei No. 9.029, de 13 de Abril de 1995, art. 1, https://perma.cc/EF4H-WMDR.

[29] Id. art. 2.

[30] Lei No. 7.716, de 5 de Janeiro de 1989, art. 1, https://perma.cc/CC9Z-UN89.

[31] Id. arts. 3 et seq.

[32] C.F. art. 3(III).

[33] Id. art. 5.

[34] Estatuto da Pessoa com Deficiência, Lei No. 13.146, de 6 de Julho de 2015, art. 1, https://perma.cc/7BFX-WSNR.

[35] Id. art. 2.

[36] Id. art. 4.

[37] Id. art. 4(§ 1).

[38] Id. art. 5.

[39] Id. art. 5(sole para.).

[40] Estatuto da Igualdade Racial, Lei No. 12.288, de 20 de Julho de 2010, art. 2.

[41] Id. art. 3.

[42] Id. art. 4.

[43] Id. art. 5.

[44] Id. art. 47.

[45] Lei No. 12.965, de 23 de Abril de 2014, art. 1, https://perma.cc/GMT3-7URY.

[46] Id. art. 2.

[47] Id. art. 7(I).

[48] Id. art. 7(II).

[49] Id. art. 7(III).

[50] Id. art. 8.

[51] Id. art. 8(sole para.).

[52] Lei No. 13.709, de 14 de Agosto de 2018, art. 1, https://perma.cc/5Q7E-KLGL.

[53] Id. art. 5.

[54] Id. art. 3.

[55] Id. art. 3(§ 1).

[56] Id. art. 4.

[57] Id. art. 4(§ 1). The mentioned specific law has yet to be enacted.

[58] Id. art. 4(§ 2). Article 55-A of Law No. 13,709 created the National Data Protection Authority, and its competence is listed in article 55-J.

[59] Id. art. 6.

[60] Id. art. 7.

[61] Id. art. 65.

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Last Updated: 12/30/2020