“Ainda existem juízes em Berlim”: a interpretação judicial e o surgimento de um direito fundamental à proteção de dados pessoais

“There are still judges in Berlin”: judicial interpretation and the emergence of a fundamental right to personal data protection

Abstract

The technological revolution of recent decades has impacted not only the global economy but also communication, giving machines and personal data processing a prominent role. As a result, a global debate has emerged regarding privacy, intimacy, and the protection of personal data in this new context. Focusing on the Brazilian case, this study, based on legal frameworks such as the Constitution, Law 12.965/2014, Law 13.709/2018, court precedents, and doctrinal paradigms, sought to reconstruct the path taken by creative judicial interpretation that recognized a fundamental right to personal data protection even before its explicit provision with the advent of Constitutional Amendment No. 115/2022. In doing so, an analytical-deductive methodology was employed, leading to the conclusion that the judiciary’s creative hermeneutics in this area proved suitable for realizing the fundamental right under analysis, without relying on express legislative enactment as a prerequisite for its application.