Privacy and data protection: for a broad comprehension of a fundamental right in its multifunctionality

Abstract

We aim to analyze the right to privacy in contemporaneity, where information technologies are capable of constant surveillance through ubiquitous techniques of data collection, data processing and data mining. We argue that while the concept of privacy as the right to be let alone was sufficient to guarantee its protection in the past, technological innovation has required the adoption of new legal instruments as the right to privacy becomes ever so more complex. We espouse the theory of the multifunctionality of fundamental rights to explain this complexity, arguing that these rights encompass different iusfundamental juridical pretensions and establish both negative and positive obligations, materially and normatively, which can be seen in Brazil by its most recent Data Protection Law. We conclude that protecting the right to privacy in the digital age does not mean supporting the end of data collection practices, but defending these practices to be guided by the notions of transparency and accountability, in order to diminish the asymmetry between the subjects of the informational relationship.