May 17th, 2018

Legislative Newsletter - Edition 090

Positive register and freedom

Proposition claiming that the bill has as scope the protection of the legal security in our system, once the law of bank secrecy does not regulate the sharing information permission of the registered.

Legislative Newsletter - Edition 090

The debate about the bill - PLP 441/2017- that discuss the Positive Register is still intense in the Brazilian National Congress. On one hand we have the Government and its allied base looking for a composition for the approval of the PLP and, in the other hand, we have a group uniting all efforts to obstruct the approval of the bill.
The bill – PLP 441/2017 -, today at the House of Representatives, was originally elaborated by the Senator Dalírio Beber (PSDB/SC), who justified his proposition claiming that the bill has as scope the protection of the legal security in our system, once the law of bank secrecy (LC 105/2001) does not regulate the sharing information permission of the registered.
The senator, author of the proposition, states that the excessive bureaucracy in the creation and insertion of registered data mitigated the admission to the program, complicating the application of the proposition by the database managers, and by consequence, inhibited the ultimate purpose of the law that is the “decrease of bank spread[1] and development of lending market in Brazil”, in this way, to solve this problem the senator suggest that the data be included automatically, securing the right of non-insertion in the database to whom that formally solicitate its removal.

It treats of the alteration in the way of understanding the freedom of the registered, in the terms of the bill author, the data of the registered will be automatically inserted in the data base, with the possibility of canceling the input of them by making a formal and explicit manifestation, in other words, we have a negative freedom in the inclusion and a positive freedom in the exclusion. The actual legislative system, Law 12.414/2011, on the other hand, states that the natural or legal person must authorize the inclusion of their informations in the database, that is to say, positive freedom in the insertion by means of express authorization on the using of its data.

In contrast to the understanding of the Government base, the opposition states that the proposition confront directly the right to hire of the registered, and more, fractures the guarantee of the consumer banking secrecy, once the data will be exposed in different database, providing its application by malicious individuals in the elaboration and realization of all kinds of fraud, emphasizing that the decrease of the spread, as pointed out by the rapporteur of the matter-  the representative Walter Ihoshi (PSD/SP)-  is not guaranteed by the bill.

The bill went to the plenary on May 9th of 2018 based in the report of the representative Walter Ihoshi (PSD/SP), having been approved in the House of Representatives with 273 favorable vote, 150 against and one abstention. It is highlighted that in Plenary the proposition got an amendment determining that the Central Bank of Brazil, within 24 (twenty four) months, refers the results achieved with the approval of the Law to the Congress, such amendment was incorporated to the report of the rapporteur that, in May 10 of 2018, forwarded the new decision to publication.

According to all that was exposed, it realises that the environment in the House of Representative will continue in ebullition this week, on one hand side the government is trying to get support for the approval of the bill under the claiming of improvement in the economy and decrease of the bank spread; on the other hand, the opposition is searching an obstruction on the voting and alteration of problematic parts of the bill, anyway, it is about the conflict between positive and negative freedom in our juridical ordainment.



[1] The difference between the price of the buyer and seller of a fixed income, of an action and even the dollar.

The difference, in certain period, between the highest price and the lower price of a product.

Risk rate on a loan, additional to interest, and that is variable depending on the liquidity of the borrower, loan volume and rescue.

Accessed in 14/05/2018 at 10:00 am.