Diálogos sobre o direito à proteção de dados pessoais entre a União Europeia e a América Latina : mediações culturais e traduções jurídicas pela Rede Ibero-Americana

Abstract

This thesis analyzes the mutual influences and dialogues between the Member States of the European Union and the Latin American countries that make up the Ibero-American Network, on the topic of data protection. It examines how the "Brussels effect" in data protection is realized in Latin America and how it is overcome through other institutional dialogues and political-social actors. These influences occur in a scenario of fragmentation of normative interpretation on the subject, even within the European Union (EU), even after the General Data Protection Regulation (GDPR). The GDPR aims to standardize the topic within the EU and, in this sense, the fragmentation should be mitigated. This study addresses the following questions: Why do norms, guidelines, and actors regarding personal data protection from the European Union gain ground in Latin America? Does the Ibero-American Network act as a mediator in translating these legal instruments? If so, how? To achieve this, a qualitative research approach is employed, combining bibliographic analysis, examination of documentary sources produced by relevant bodies, and empirical research. The empirical research involves fieldwork with observations from on-site experiences in various Latin American countries, conducted as part of a larger research project funded by FAPESP – Documentary and Field Research on Data Protection Authorities in Latin America: the Concept, Social and Institutional Privacy, and Personal Data. It also includes a year of studies in Portugal as a PhD candidate associated with the Jean Monnet Centre of Excellence Digital Citizenship & Technological Sustainability (CitDig) and the Justice and Governance Research Center (JusGov). These experiences provide deep understanding into the institutional practices of Control Authorities and opportunities for dialogues and interviews with relevant actors from civil society, academia, and the private and public sectors in each country. Sixty-three interviews were conducted online and in person in eleven countries: Argentina, Brazil, Colombia, Chile, Costa Rica, Spain, Mexico, Panama, Peru, Portugal, and Uruguay. This thesis uses part of this material as a primary source. The research begins with a literature review to understand the polysemy of the concept of data protection, the distinction between this right and privacy, and its connection to access to information in certain contexts. In this initial part, the theoretical conceptual elements of the research are presented, discussing the role of the OECD and the Council of Europe in personal data protection involving Latin America and the European Union. The legislative situation and institutional format of the institutions that make up the European Union in personal data protection are then presented, demonstrating that this is not a homogeneous context, using Portugal as a case study of a Member State's role. Subsequently, the thesis provides a brief contextualization of data protection authorities and regulation in Latin America, addressing the role of the Ibero-American Network as a catalyst in the legislative construction of personal data protection in the region. This articulation occurs through the influence of Directive 95/46 and adaptation to the GDPR, including adherence to Convention 108+, among other elements involved. The thesis seeks to understand the phenomenon of the “Brussels effect” and the expansion of European Union law to other regions, particularly Latin America. It is part of the Research Line Transformations in Social and Economic Order and Regulation, under Social Regulation and Public Policies for Education, Science, Technology, and Innovation of the Postgraduate Program in Law at the University of Brasília, in conjunction with the Doctorate in Public Legal Sciences at the University of Minho.