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