Autodeterminação informativa no âmbito da Justiça do Trabalho: a proteção jurídica de dados pessoais do trabalhador em perspectiva comparada entre Brasil e Argentina

Abstract

The technological developments and the increasing use of information and communication technologies (ICT) have undeniable advances in the democratic processes of a network society, as a result of the closer relationship between the Government and citizens, the expansion of administrative efficiency, and the creation of communication channels that enable greater government openness and transparency. Along with these benefits, new threats come to light, especially along the thin line that separates the public and the private in a world that breaks with the classic concepts of privacy, adding ruthless vigilance to the daily lives of citizens, as all become be watched and watched. This context imposes a close look at the problem of the worker who claims a labor claim for the protection of his unfulfilled rights and that, in this situation, is in a state of marked vulnerability both vis-à-vis other individuals and the Government, precisely because of disclosure of your personal data through the institutional portals of labor justice. The new demands now require an effective exercise of the right to informational self-determination by the worker, especially in the field of the Labor Process, since the claimant does not, in fact, have control over the destination of the information provided to the Judiciary. If this is a problem that disturbs the Brazilian worker, since the Labor Court is precisely the entity responsible for safeguarding their rights and at the same time the agent that increases the risk of discrimination, it is also in several Latin American countries. Therefore, given the fact that Argentina was the first country in the Southern Common Market (MERCOSUR) to obtain European Union certification, it recognized the legislation of that country with an adequate level of protection compatible with that of Europe and, considering the recent The publication, in Brazil, of Law Nº. 13.709 / 2018, still in the phase of vacatio legis, asks: is it possible to state, in comparative perspective, that the new Brazilian legislation confers a level of protection compatible with its neighbor mercosulino, revealing itself? adequate and sufficient to ensure the protection of the employee in the face of data collection and processing due to the filing of the labor claim? The study uses the hypothetical-deductive approach method and the comparative and monographic procedure methods in order to analyze the legal systems of personal data protection in Argentina and Brazil in order to verify if the two Latin American countries guarantee effective protection for workers, given their vulnerability to the collection, manipulation and distribution of personal data in the judicial sphere, through the use of Information and Communication Technologies. To this end, it uses the research techniques of document analysis, bibliographic research and systematic, direct and non-participant observation of websites and institutional portals of the Labor Judiciary of the two neighboring countries. Based on the hypotheses initially formulated, the results led to two appropriate responses to the solution of the problem, in a complementary way: 1) the new Brazilian personal data protection law has a level compatible with Argentine legislation, but none of them is sufficient to guarantee the protection of workers' personal data within the scope of Labor Justice; and 2) regardless of the level presented by the data protection law of each country, it is not possible to state directly that the existence of a specific law conditions the protective practices of personal data of the worker by the Labor Judiciary in the disclosure of procedural information.