A proteção de dados no direito brasileiro e a tutela de direitos sob a perspectiva do comum

Abstract

This paper aims to rethink, with a focus on data protection, the potential feasibility of mitigating the Brazilian jurisdictional deficit concerning its (in)effectiveness in safeguarding transindividual rights. To achieve this, we will analyze both the constraints of individualism that have persisted since the establishment of the Modern State, resulting in the stagnation of the Law in resolving current demands arising from a interconnected and diffuse society. We will also explore the intricacies regarding the collective nature of data, from its production, extraction, and mining, being indiscriminately used as a prolific instrument of social reproduction in the context of contemporary dataveillance. In the face of this situation, particularly considering the lack of an effective legal response to deal with metaindividual protections of such magnitude, the research is grounded in addressing the following controversy: focusing on data protection, to what extent would it be possible to chart new jurisdictional perspectives to achieve the protection of a "common" good? As a methodological approach, the dialectical method was employed to conduct the research, aiming to verify the assertion that the current legal system is inefficient in protecting data as a transindividual right. This approach proposes an analysis of the legal structure built under the influence of the liberal paradigm, seeking to justify that this structure does not adequately provide the necessary protection to data when understood as a common-collective asset. Regarding the procedural method, historical, comparative, and functionalist methods will be implemented. The historical approach is indispensable to this research as it seeks to create a chronological sequence related to the legal and social fields. Additionally, through the comparative focus, a juxtaposition is made between state models, as well as the nuances of society throughout technological evolution. In the final analysis, the functionalist method was chosen since the research aims to understand and elucidate the functionality of relevant elements that surround the issue of data as a means of social (re)production. In terms of research technique, indirect documentation is used through bibliographic, jurisprudential, and documentary research in normative texts, with a focus on the General Data Protection Law, among other regulations on the subject and relevant literature. The research concludes with the need to rethink jurisdiction from a "common" perspective, dissociating the protection of rights from a property-oriented standpoint, thereby enabling greater effectiveness in ensuring and preserving collective and diffuse interests, with the aim of fostering democratic expansion.