O consentimento previsto na LGPD e sua aplicação nos contratos eletrônicos: desafios para sua validação

Abstract

This paper deals specifically with the challenges for the application of the hypothesis of data treatment allowed in electronic contracts, provided for in the General Data Protection Law (Law No. 13.709 / 2018). The choice of the theme was due to the recent approval of the aforementioned law and the predictability of the occurrence of numerous problems that its application will bring to the national legal scene as of its validity. The central object of the study is the hypothesis of obtaining consent for the treatment of personal data provided for by law, especially in view of the inclusion of ambiguous clauses, when not biased, in electronic contracts, whether business or consumer. The application challenges would lead to an apparent conflict of interest between freedom of choice (expression of will) and the increasing exploitation of various economic activities based on the use of personal data, developed essentially from new technological tools and, in particular, by entering into electronic contracts. Is that the "electronic mechanization" of granting consent "could give the false sensation of obtaining the consent lawfully, precisely because the will would not be free, informed and unequivocal regarding the treatment of the data of the holder, hypothesis that, in theory, would remain violated the provisions of the Federal Constitution, the Civil and Consumer Protection Codes and, in particular, the LGPD itself, especially in view of the breach of the principles of the Social Function of the Contract and of Good Faith. Thus, with the development of the proposed theme, we seek to examine issues related to the difficulty of making the treatment of personal data compatible in the exploration of new and reinvented forms of exploitation of economic activities, provided by the use of new technologies (big data, automation, intelligence software, computer software, etc.), with the specific will of its owner, hampered by the large-scale use of electronic contracts.