A proteção de dados pessoais como cláusula pétrea: a atuação do poder constituinte reformador

Abstract

Throughout this monograph, it will be questioned the inclusion of the protection of personal data in the list of fundamental rights and the expansion of the protection conferred by the Brazilian Federal Constitution on privacy, intimacy and data secrecy, in order to conclude how the emergence of new fundamental rights are established as new limits to the power of constitutional amendment. In view of this, it is established as a research problem: what is the scope of the material limitation of the amendment power contained in the emergence of new fundamental rights, such as the right to protection of personal data? In response to it, the present research raises the following hypothesis: the power of constitutional amendment acts in the specific procedure of alteration or expansion of the constitutional text, thus being possible to affirm that the recognition as a fundamental right to the protection of personal data is configured as a new species of the exemplary list of personality rights, expanding the general protection of the human person. Thereafter, the wording given by EC 115/22 will be addressed, which makes it clear that the fundamental right to the protection of personal data becomes submitted to an express and simple legal reservation, which gives autonomy to the infraconstitucional legislator for the purpose of establishing restrictive interventions. within the scope of protection of the right, besides implying, on the other hand, the observance of the requirements of the reservation of law. In addition, the right to protection of personal data is studied as a petro clause in order to address how the limits to the power of constitutional amendment work. It is thus concluded that, as a fundamental right, the right to the protection of personal data, assumes the condition of material limit to the constitutional reform, and that, in addition, the so-called formal, circumstantial and material limits must be observed, under the terms of the article 60, paragraphs 1 to 4, of CRFB/88. To develop this research in depth and detail, it was used the hypothetical-deductive method, likewise having the nature of an exploratory, bibliographic and documentary study.