The Brazilian National Data Protection Authority (ANPD) has submitted for public consultation, until October 7, 2022, a preliminary study regarding the legal bases applicable to the processing of personal data of children and adolescents.
The lack of clarity of Article 14, Section 1, of LGPD (Federal Law No. 13,709 of 2018) allowed different interpretations on whether consent would be the only lawful basis for processing the personal data of the minor.
Based on the findings of the preliminary study, the ANPD asserts that the processing of personal data of children and adolescents can be carried out with support of the legal bases provided for in arts. 7 and 11 of the LGPD, observing the applicable legal requirements and the principle of best interest, pursuant to art. 14. The ANPD’s interpretation is in accordance with Statement No. 684, of the IX Civil Law Conference, promoted by the Federal Justice Council:
“Statement No. 684: Art. 14 of Law no. 13.709/2018 (General Data Protection Law – LGPD) does not exclude the application of other legal bases, if applicable, observing the best interests of the child.”
Therefore, according to this interpretation, it is possible to rely on all the lawful bases, not just consent, to process personal data from minors. When consent is applicable, it must always be given in a specific and prominent way, by at least one of the parents or a legal guardian, and with due regard to the best interests of the child or adolescent.