Condenação por vazamento de dados sobre gravidez evidencia impacto da LGPD – 23/07/2022
A condenação de um laboratório pelo uso de dados sensíveis para oferecer seus serviços a uma gestante, que não havia autorizado o compartilhamento das informações, repercutiu de maneira positiva entre especialistas em proteção de dados.
A decisão do Tribunal de Justiça de São Paulo foi divulgada nesta quinta-feira (21/7) pela ConJur.
Segundo os autos, dias após sofrer um aborto espontâneo, uma mulher recebeu mensagens de WhatsApp de um laboratório com uma oferta de coleta e armazenamento de cordão umbilical. Ela alegou não ter fornecido seus dados pessoais, nem informações sobre a gravidez, para o laboratório. Em contestação, a empresa disse que só teria utilizado dados não sensíveis e não sigilosos (nome e número de telefone).
No entanto, o entendimento do TJ-SP foi de que a gravidez é um dado sensível, como dispõe o artigo 5º, inciso II, da Lei 13.709/2018, a Lei Geral de Proteção de Dados (LGPD). O dispositivo classifica como dado pessoal sensível qualquer informação referente à saúde das pessoas. Especialistas ouvidos pela ConJur concordam com o posicionamento dos magistrados.
Esse compartilhamento sem qualquer conhecimento da titular, agravado por se tratar de uma condição de saúde, certamente contraria princípios da LGPD e não encontra base legal para ser realizado. A lei vem no sentido de garantir o livre desenvolvimento da personalidade humana e autodeterminação informacional, em uma nova economia em que os indivíduos são datificados a todo o momento.
Se ela passou por um laboratório para confirmação da gravidez e, depois, recebeu contato de um segundo laboratório, o primeiro também é parte legítima para constar no polo passivo da ação. Seria caso de responsabilidade solidária entre o controlador e o operador dos dados. A LGPD prevê a responsabilidade solidária nessas situações, até por conta da relação que deve existir entre as duas empresas.
Empoderamento do titular
O advogado especialista em Direito Digital Luiz Augusto D’Urso, que também preside a Comissão Nacional de Cibercrimes da Associação Brasileira dos Advogados Criminalistas (Abracrim), considera que a LGPD trouxe uma alteração cultural ao país mediante um “empoderamento do titular”, que hoje entende a importância de seus dados serem bem cuidados pelas empresas.
“Com isso, aumentou a responsabilidade das empresas, que não podem permitir o vazamento e o compartilhamento indevido dos dados. Por isso que a LGPD tem um papel tão importante. Esse caso servirá de lição para todas as empresas, que precisam investir em cybersegurança e no sigilo das informações. Não há dúvida de que veremos mais decisões nesse sentido daqui para frente”, disse D’Urso.
Fonte: Conjur
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