A geração de efeitos concorrenciais pela LGPD para as microempresas e empresas de pequeno porte

Resumo

The technological revolution, marked by the use of data processing for economic purposes, has a profound impact on contemporary life. The right to privacy has been affected, giving rise to a new, intrinsic, yet autonomous right: the right to the protection of personal data. Over the last half-century, the importance of this new right has grown exponentially, with the emergence of regulations aimed at its protection, such as the GDPR, in Europe, and the LGPD, its counterpart in Brazil, establishing rules and restrictions on the free processing of personal data. However, the current essential role of data processing in the economy means that regulations on the protection of personal data can affect the competitiveness of companies, potentially leading to anti-competitive effects. This is because the high costs of compliance to personal data protection laws can create entry barriers in certain markets, disproportionately affecting small and microenterprises due to their characteristics, such as size and limited financial capacity. Such a scenario was first envisioned in the European Union, given its avant-garde stance, but could also happen in other legal systems, especially those adopting regulations similar to the GDPR, as is the case with the LGPD in Brazil. Thus, this work seeks to examine the possibility of the creation of entry barriers due to the LGPD for Brazilian microenterprises and small businesses. Subsidiarily, it aims to assess whether the current regulatory mechanisms of the Brazilian Data Protection Authority, the ANPD, are sufficient to mitigate these effects. The defended hypothesis is that the similarity between the LGPD and the GDPR increases the possibility of creation of entry barriers for small players in Brazil, with currently inefficient regulatory instruments to address this problem. This hypothesis is supported by the investigation in this work, which, after comparisons between the Brazilian and European legal systems regarding the protection of personal data and regulations for small businesses, identified a high degree of similarity between them. This could lead to the replication of the anti-competitive effects that are beginning to be observed in the European Union in Brazil. Furthermore, the activity of the ANPD so far would be insufficient to deal with such anti-competitive consequences, requiring the evaluation and use of alternative regulatory strategies, with some possibilities suggested by the study, focused on reducing the compliance costs for small players.

Ficha do documento

Tipo

Dissertação

Ano

2024

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/35201

Temas

Dados

Palavras-chave

Direito antitrusteDireito da regulaçãoEstratégias regulatóriasProteção de dados pessoaisPequenas empresasRegulatory lawRegulatory agenciesRegulatory strategiesData protectionAntitrust lawSmall and micro enterprisesDireitoDireito regulatórioPequenas e médias empresasProteção de dados - Legislação - Brasil