Termos de privacidade do Facebook: uma análise jurídica sobre os elementos de autodeterminação informativa do usuário.

Abstract

The following research aims to investigate the legal compliance of Facebook's Terms of Privacy when it comes to information about data protection according to Brazilian General Data Protection Law and to domestic scholarly discussion about informational self-determination. This theme was chosen because of three main factors: the fundamental nature of the right to data protection, the leading role of Facebook on propagating surveillance capitalism and the high popularity of this social network among Brazilian population. The methodology employed in this research is better described in two stages: the first step takes legal and bibliographic research about consent to data processing and informational self-determination and, through the dialectic method, elaborates a checklist board with elements that should be present in a ideal privacy term; subsequently, the second step carries out documental research on the selected privacy term, and its attached pages, in order to complete the analysis through the lenses of the previously crafted checklist. The paper is divided in three chapters. The first chapter lays out a brief explanation about the context of surveillance capitalism, then explains the regulatory response to the large-scale practice of data processing; subsequently, it highlights the main role of the principle of self-determination and the legal concept of consent on personal data protection. The second chapter explains the role of privacy terms on the accomplishment of the user's informational self-determination, thenceforth it outlines the construction of a “model of privacy term for social networks”, through a dialogue between academic discussion and legal normativity. The third chapter contains the actual analysis of Facebook's privacy terms in comparison with the guidelines established in the previous chapter; it lays out the favorable and unfavorable practices to the accomplishment of user's informational self-determination found in the privacy terms, and briefly describes the most relevant findings of the study by filling in the self-determination checklist. Some of the favorable practices found were: adoption of concrete measures to ensure freedom of expression on the social network; general obedience to the principle of purpose, with the possible exception of two cases described in the third chapter; respect for the principle of non-discrimination; use of privacy-friendly technologies to support user decision making. Some of the unfavorable practices found were: absence of measures to prevent the click-wrap; possible disrespect of the purpose principle with the processing of certain user information, which may include audios of private conversations, to “provide measurement, analytics and business services to advertisers" and for "research and innovation for the social good” purposes; absence of information on the risks that arise from data processing, the measures to mitigate those risks, and the accountability of data controllers and data operators; absence of tools to enable the user to exercise the right provided for in the article 18, VIII, of the LGPD. Keywords: Brazilian General Data Protection Law. Privacy Term. Facebook. Informational self-determination. Consent to Data Processing.