A nulidade das cláusulas de compartilhamento de dados pessoais nos contratos de adesão sob a perspectiva da proteção constitucional e consumerista

Abstract

Personal data became part of the tutelage of the individual's personality based on constitutional and consumer protection, and, in parallel, from the perspective of CivilConstitutional Law, in which the institutes and concepts were reformulated, in order to protect existential issues as well. In this pattern, the Federal Constitution of 1988 established a new order, in which there was a process of repersonalization of the conceptions and principles of private law. In addition, with the advent of information technology, which has modified the social relations, and particularly the commercial relations, the data of the consumers obtained through the provision of a service or a product purchase have come to represent an important exchange currency, to the extent that such information would be able to revolutionize the consumer market with a view to its use for the accomplishment of business marketing. However, the collection, storage and processing of such information, without the express consent of the owner, entails violations of the individual's personality rights, in particular, his or her privacy, as a fundamental right. Therefore, specific regulation of the subject in the internal order is necessary, with the intention of protecting the consumer's personal data, due to the exacerbated exploitation of the suppliers that, for the sake of profit, use unlawfully the personal information obtained without the consumer's express consent. To do so, it is worth taking as reference the regulatory models for data protection adopted by comparative law. In this way, the present paper uses an exploratory research of the literature and national and foreign legal documents, besides employing a bibliographical research to base the conception of rights to privacy, as unfolding of the rights of the personality, whose observance guarantees the respect to the human person's dignity as the foundation of the Federative Republic of Brazil. Thus, there is a need to declare the nullity of personal data sharing clauses in the adhesion contracts, with a view to violating the consumer's privacy, by passing on their information to third parties. It is therefore important to draw up legislative measures as a means of regulating the subject in an effective way, and, in addition, there should be a greater mobilization of civil society in order to question the existence of unfair clauses in consumer contracts, with the intention of being declared null and void by the Judiciary.