Proteção de dados na sociedade da informação : a figura do consentimento

Abstract

The discussion about the mechanisms for the use and protection of data on the internet has gained unprecedented importance. The modern human being not only uses virtual interaction networks, but needs them, increasingly, to be socially and culturally integrated into the information society. In view of this need and the economic, political and social valuation of personal data, this research sought to analyze how consent, a legal institute present in the central axis of protection regulations relating to the matter, is being used and interpreted. In this context, the efficiency of consent as a normative protection strategy is questioned, given that through the extensive and complex terms of use and privacy policy, the institute assumes a mere fictional function in the process of legal protection of personal data. The reflection that is put forward focuses on the ability of the holder of personal data to consent effectively, given the patent lack of clear information about what data processing is. Therefore, through a qualitative analysis, carried out through a literature review, an overview of the role of consent in Brazilian legislation on the subject was made, from the Consumer Protection Code to the General Data Protection Law. The result found pointed to the insufficiency of consent as a normative strategy for the protection of personal data, enhanced by its interpretation under the dogmas of contractual law and by the limitation of the legal protection of data to the field of the right to privacy. This insufficiency can be remedied by re-reading the legal institute of consent and by regulating mechanisms for improvement designed and structured within information technology itself.