A autodeterminação informativa na sociedade em rede e as perspectivas de responsabilidade civil à luz da LGPD: uma análise jurisprudencial do Tribunal de Justiça de São Paulo

Abstract

The subject related to privacy and data protection have undergone significant changes with advances in technology. Among the main consequences that can be observed from the phenomenon of the digitization of the world, the mitigation between the limits between the public and private spheres stands out, forcing the concept of privacy to be reinvented. In the context of these new social needs, the right to informational self determination develops, which becomes effective when the holder gains knowledge and influence over the collection and processing of his personal data. The debate gains greater importance with the entry into force of the General Data Protection Law (LGPD). However, this prerogative is still frequently violated, which attracts the possibility of civil liability for the violation of informative self-determination, which is an unfolding of the human personality. Considering that the controversies that discuss the right under analysis, frequently, requires judicial intervention for their resolution, it is important to know the position of the jurisprudence on the subject. Faced with the impossibility of analyzing all the courts that make up the Brazilian Judiciary, the research proposes to carry out a jurisprudential analysis of the Court of Justice of the State of São Paulo (TJ/SP), justifying the selection due to the significant number of res judicata, seeking to answer the following research problem: how does the jurisprudence of the TJ/SP use the institute of civil liability to protect situations of violation of the right to informative self-determination in the light of the LGPD from its validity? As part of broad and general concepts to achieve the objective of identifying the decision-making pattern of the TJ/SP, the research will have a deductive approach method and a monographic procedure method, using bibliographical and documental research as a technique. With regard to the selection of judgments that make up the body of analysis of the present research, in the TJ/SP jurisprudence search engine, the entire content of the documents judged was searched through two groups of - The analysis demonstrates that the damage resulting from the irregular processing of sensitive personal data is presumed, while that of non-sensitive personal data must be proven. The final considerations are aimed at fostering the debate whether the obligation for proper treatment is a means or a result, as well as questioning whether there is no excessive burden regarding the distribution of the burden of proof to the holder.