Today, the ANPD’s board of directors approved the Authority’s Monitoring Procedure’s and Sanctioning Administrative Procedure’s – SAP’s Regulations, providing rules and procedures that will be applicable to the ANPD’s monitoring and sanctioning administrative procedures.
The Regulation provided that Brazilian Federal Administrative Procedure’s Law – Law no. 9,784/1999 will have subsidiary applicability to the ANPD’s administrative procedures and that the procedures can be filed by the ANPD’s own authority. Moreover, the procedures are able to use evidence already used in another procedure, administrative or judicial, including evidence produced by foreign data protection authorities.
It also provided that the data subject’s claims to the ANPD must be filed with evidence that the data subject previously attempted to contact the Controller regarding the question and no solution was found. However, a data subject’s self-declaration will be acceptable as evidence if there is no other way to prove the contact. The Regulation further provided that claims to the ANPD can be filed anonymously.
Regarding the ANPD’s monitoring activities, the Regulation created instruments that will be used previously to an SAP, aiming to avoid or solve situations that might harm the data subjects. Please note that failing to comply with any of these instruments can be considered as an aggravating circumstance, in case of a following SAP.
The Regulation provided that the term to respond to claims and file appeals will be ten business days and that decisions initiating an SAP cannot be appealed. It also provided that SAP’s decisions resulting in fines and sanctions can be reviewed at any time.
At last, the Regulation also provided that parties can execute a Terms for the Adjustment of Conduct – TAC with the ANPD that will suspend the SAP.
Our team is at your disposal for further clarifications, as well as to provide assistance with the procedures for fulfilling LGPD and/or ANPD regulatory obligations.
Gustavo Flausino Coelho – gustavo@bastilhocoelho.com.br
Fernando Naegele – fernando@bastilhocoelho.com.br