This article will clarify what the LGPD is, outline compliance steps for publishers, and explain how the LGPD compares to the GDPR.
Please note: We are not a law firm and therefore do not offer legal advice. This article is informational. Please speak to a lawyer before determining how the LGPD affects your business.
What is the LGPD?
The LGPD, or Lei Geral de Proteção de Dados (General Data Protection Law), is a comprehensive data privacy law that guarantees individual rights to Brazil’s more than 150M internet users.
The LGPD was passed in August 2018 and was finalized by President Jair Bolsonaro last July. Enforcement of the law was delayed this spring. The LGPD will now be effective August 1, 2021 and enforced by a new national authority, the Autoridade Nacional de Proteção de Dados (ANPD), similar to the European Data Protection Board (EDPB).
The LGPD applies to all data collection and processing in Brazil - and for all individuals within the territory of Brazil - regardless of the data processor’s headquarters.
Like the GDPR, the LGPD views personal data as any data that can identify someone. PII (personally identifiable information) includes: name, IP address, lat/long coordinates, cookie IDs, RFID numbers, user agents, mobile IDs, and biometric/genetic/financial/behavioral/demographic data.
Without consent from a Brazilian user, you cannot:
- Send full IP addresses downstream; they must be truncated
- Pass GPS data
- Store PII in internal logs
- Send any other PII via downstream OpenRTB fields, as you’d need consent for all DSPs, ad networks, data providers, etc. involved (we have a separate article on LGPD and Google Analytics)
If a user has opted in, however, you may continue to do cookie matching, interest targeting, frequency capping, programmatic ads, and so on.
LGPD vs. GDPR: Key similarities
The LGPD was inspired by the GDPR, so these privacy laws share a number of commonalities, including:
|Personal data||Any data that, by itself or combined with other data, could identify a person|
|Territorial scope||Any data processing within the respective countries, irrespective of where the processor is headquartered|
|Data Protection Officers (DPOs)||Required for “large-scale” data processing and monitoring (see below)|
|Data subjects||Any individual whose data is processed or collected. Like the GDPR, the LGPD guarantees multiple rights to data subjects: |
LGPD vs. GDPR: Key differencesDespite their similarities, the LGPD does have differences:
|When consent is not required for data processing||Subject to 10 legal bases: ||Subject to six legal bases: |
|Penalties||Capped at 50M Brazilian reais (aka reals) or 2% of annual revenue from Brazil, whichever is higher||Capped at 20M Euros or 4% of global annual revenue, whichever is higher|
|Data breach notifications||“Reasonable time period” to be defined by the national authority||72-hour timeline|
Who needs to comply
Regardless of your company size, you’ll need to comply if your ad platform:
- Includes activity in Brazil
- Collects personal data in Brazil
- Offers or supplies goods or services in Brazil, or relates to users geographically located in Brazil
Effectively, unless your site/app is unavailable in Brazil, you will need to enact some changes to be LGPD-compliant.
How to comply
The good news?
If you’re GDPR-compliant, you’ve done much of the heavy lifting required for LGPD compliance.
Like the GDPR, the LGPD qualifies consent as a freely-given indication of a users’ agreement for general data processing - and requires that information on personal data collection and use be clear, adequate, and easily accessible.
Consent must be provided by the data subject in writing or by other means, such as a consent banner on your website. The right to revoke consent must also be clearly disclosed.
As you prepare for the LGPD (by August 1, 2021), we suggest the following:
- Review the PII you collect from Brazil
Conduct a detailed audit and risk assessment of the Brazilian user data you have, how it’s used, and with whom you share it. For programmatic advertising or data sales, this will include ad servers, DMPs, DSPs, etc.
- Avoid storing any PII in your logs for Brazilian users
- Ensure your CMP tool prompts consent for anyone in Brazil
- Enact a risk assessment plan
Breach notifications for the LGPD are seemingly less stringent than the 72 hours mandated by the GDPR, but you’ll be held liable regardless of your awareness of a breach.
With the passage of the LGPD, Brazil - the largest country in South America and Latin America - joins more than 100 countries with personal data protection laws. Given heightened consumer concern and awareness, we expect more privacy laws to come - and we’ll be sure to help publishers prepare for them.
As you prepare your platform for LGPD compliance, here are a few additional sources that may prove helpful:
Official LGPD Texts
- "What is the LGPD? Brazil’s version of the GDPR" - GDPR.edu
- "Comparing privacy laws: GDPR v. LGPD" - OneTrust DataGuidance
- "The new Brazilian General Data Protection Law - a detailed analysis" - IAPP
- "Recapping the latest updates to Brazil’s general data protection law" - IAPP
- "Congress approves creation of Brazilian data protection authority, amends LGPD" - IAPP
- "Enforcement of Brazil’s new Data Protection Law postponed due to COVID-19" - Kinast
Overall Industry Privacy
- "SameSite Cookie Attribute: What It Is And Why It Matters" - Adzerk
- "How Apple’s Safari ITP Can Limit Your Ad Revenue — and How to Counter That" - Adzerk
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