Sob "termos e condições": privacidade, consentimento e autodeterminação informativa na era digital

Abstract

The intense presence of cybernetic technologies in the daily life of the population is a distinctive feature of contemporary society. The large availability of information about individuals on the net motivated discussions about the right to privacy, its importance and its limits, as the net provides an environment conducive to surveillance and direct intrusion into the individual’s personality. In order to guarantee effective individual and collective protection, it is necessary to view the right to data protection as an autonomous fundamental right and personality right, linked to the right to privacy, which in its scope does not sufficiently cover situations resulting from technological advances. The discovery of techniques to exploit personal data succeeded to raise its worth on the market. In this context, a market for personal data became established, even in the face of the risks to personality caused by the immoderate flow of data. The collection and use of personal data follows the terms of the electronic contract, supported by documents like terms and conditions and privacy policies. However, the legitimacy of these transactions with data is debatable because of the circumstances surrounding the assessment of the individual’s consent regarding the terms of the contract. It results that the current system for verifying consent on digital platforms, named “Notice and Choice”, fails to ensure the necessary clarification for users to make a conscious decision regarding invasions of their privacy in the form of data processing operations. Thus, it is necessary to search for mechanisms that strengthen this consent and return the power of informational self-determination to the individual, as a prerogative to the very protection of his personality. With this focus, it is possible to verify the importance of coordinated action between State, market and society. First, with the adoption of the privacy by design methodology in technologies and enterprises, from end to end, by economic agents. Likewise, the State must establish effective regulation in line with society's values, given a contextualized view of information flow and consent, according to Helen Nissenbaum's theory, and encourage a collective awareness of privacy in society. For the research, the deductive method and the qualitative approach were used, with a wide academic and legislative bibliographic study.