Law No. 13,709/18, or the General Data Protection Law (LGPD), expressly consolidates the principles and rules of a positive framework for data protection in Brazil. Although it will only take effect on August 16, 2020, many of its rules are based on the current legal system. Practically all economic activities will be subject to the application of the LGPD, since the performance of any data processing operation is enough for the standard to find factual support. In this article we specifically analyze the advertising industry, more specifically children's advertising, and the processing of personal data of minors for this purpose.
The subject is quite controversial, because some currents take the position that children's advertising itself is abusive. Considering that the most modern techniques of advertising use contextual and behavioral analyses, based on the profile of users, to direct advertising to children (especially under 12 years old), it is increasingly important to discuss these practices from a legal and ethical point of view.
The LGPD should be applied in a manner consistent with the legal system in force as a whole, establishing a normative efficiency not only restricted to a specific branch, but also functional in relation to the entire legal system, in order to avoid regulatory antinomy and incompatibilities. The idea is to complement the system with the protection of personal data and the rights of the data subjects, taking into account the existing rules.
In this sense, the subject of children's advertising is already regulated by established rules, such as Law No. 8,069/90 (Child and Adolescent Statute), Decree No. 99,710/90, which promulgated the United Nations Convention on the Rights of the Child, Law No. 8,078/90 (Consumer Defense Code - CDC), Resolution No. 163/14, of the National Council of the Rights of the Child and Adolescent (Conanda), although both the competence and the obligation of this rule are a source of controversy, and the Brazilian Code of Advertising Self-Regulation, of the Advertising Self-Regulation Board (Conar).
A fundamental difference, and one that may generate discussions in the implementation of LGPD, is the framework applicable to children, distinct from that of adolescents. To make it clear, the concepts of children and adolescents are those established in the Child and Adolescent Statute: the former refers to persons up to 12 years in age, while the latter covers individuals between 12 and 18 years of age.
The system for protection of minors, established by Law No. 8,069/90, is based on the principles of full protection and their best interest, recognizing respect for their integrity as a person, allow for the possibility of full human development. These principles ensure the prevalence and primacy of the interests of the minor as a beneficiary of rights, and are guided by a concern for the full development of the minor's physical, psychological, and personality capacities, especially those of children.
Under the Brazilian Advertising Self-Regulation Code, which establishes parameters and guidelines for advertising aimed at children and adolescents, no advertisement shall address an imperative appeal to consumption directly to children.
In this sense, the code defines in its article 37 the guidelines for advertising aimed at this audience. Advertisements should reflect special care with regard to safety and good manners and should also refrain from: (i) undermining positive social values; (ii) deliberately provoking any type of discrimination, particularly against those who, for whatever reason, are not consumers of the product; (iii) associating children and adolescents with situations incompatible with their condition; (iv) imposing the notion that consumption of the product provides superiority or, in the absence thereof, inferiority; (v) causing situations of embarrassment to parents or guardians, or molesting others, with the purpose of encouraging consumption; (vi) employing children and adolescents as models to vocalize a direct appeal, recommendation, or suggestion to use or consumption; (vii) using a journalistic format, in order to avoid having the advertisement be confused with news; (viii) proclaiming that the product intended for consumption by children and adolescents contains peculiar characteristics that, in fact, are found in all similar products; and (ix) using situations of psychological pressure or violence that are capable of instilling fear.
The controversy was created, however, with the promulgation of Conanda Resolution No. 163/014, which establishes as abusive, due to the national policy of care for children and adolescents, the targeting of advertising and marketing communications to children, with the intention of persuading them to consume any product or service. The resolution prohibits any form of advertising to minors using: (a) children's language, special effects, and excessive color; (b) soundtracks of children's songs or sung by children's voices; (c) representation of children; (d) people or celebrities with appeal to children; (e) children's characters or presenters; (f) cartoons or animation; (g) dolls or the like; (h) promotion with the distribution of prizes or collectible gifts or with appeals to children; and (i) promotion with competitions or games with appeal to children, as a way of establishing proximity to children, taking advantage of their inexperience.
These rules are aligned with the part of the legal scholarship that defends as abusive and unconstitutional in the Brazilian legal system any and all advertising directed at children, considering that the CDC provides in its article 37, second paragraph: "discriminatory advertising of any nature, among others, is abusive when it [...] takes advantage of the deficiency in judgment and experience of children, [...] or is capable of inducing consumers to behave in a way that is harmful or dangerous to their health or safety.”
Likewise, the STJ has been emphatic when deciding on the matter, delimiting the matter on the basis of the specific case presented. In deciding REsp 1.558.086/SP in a public civil action regarding illegality in the purchase of watches conditioned on the purchase of food products, the STJ expressly stated that "marketing (advertising or sales promotions) of food directed, directly or indirectly, to children is abusive. The decision to buy and consume food, especially in times of an obesity crisis, must reside with the parents", notably because minors have “their discernment incomplete, but on the other hand, have an enormous capacity to convince their parents, caretakers, or family members, to buy those products that interest them."
This was also the guidance of the STJ in REsp 1.613.561/SP on a campaign aimed at children and the youth public, which encouraged minors to exchange stamps printed on food packages for uniformed plush mascots.
Both the self-regulation of the advertising sector, represented by the Conar code, and Conanda Resolution 163/14 claim validity of application in our legal system. Conanda’s position is that advertising aimed at children is abusive and that advertisements should be directed to parents and guardians. Conar, on the other hand, which prohibits imperative appeals to consume directed to children, establishes guidelines for validity, in theory, of advertisements that could be released to minors. On January 24 of this year, the National Consumer Bureau, an agency linked to the Ministry of Justice, released a public consultation by submitting for discussion a draft of a new ordinance to be issued to regulate the matter.
The content under analysis seems to be in line with Conar's guidelines, to the effect of regulating, and not prohibiting, these types of advertisements, but it is possible to find points in common, such as: the presence of the paradigm of the principles of full protection and the best interest of the minor, and the principle of more comprehensive protection for the public under 12 of age, i.e. children.
But how can the issue of data processing be thought about in that context?
The LGPD establishes as a rule that the processing of personal data of minors (children and adolescents) must also obey the best interest principle. Thus, the standards cited above must be obeyed.
In relation specifically to children, any form of processing should be carried out with the specific and clear consent of at least one of the parents or the legal guardian. One observes, therefore, greater protection for children. It is also noted that, in addition to the legal bases for processing personal data indicated in articles 7 and 11 of the LGPD, the data controller must be subject to article 14 of the law when there is data relating to children.
There are two possible exceptions to the specific and clear consent rule from the child's legal guardian: when the collection of the data is necessary to contact the parents or legal guardian (such data must be used only once and must not be stored) or for the protection of the child. Under no circumstances may the child's data be passed on to a third party without the consent of guardians.
The LGPD does not, however, address the legal basis for the processing data regarding adolescents, which could establish a debate on the application thereof. Is the consent of the guardian, as expressly indicated for children, also necessary for adolescents?
For the purposes of exercising consent, individuals over the age of 16 and under the age of 18 are incapable with respect to certain civil acts or with respect to the manner in which they consent to them and need the assistance of their guardians. On the other hand, minors under 16 years of age are absolutely incapable of personally performing acts of civic life, requiring representation for the performance of any act.
The Civil Code also states that "no one may claim what, by an annulled obligation, he has paid to an unfit person, if he does not prove that the amount paid reverted to such person." In other words, in order for the effects of a legal transaction entered into with a minor to be maintained, it must be proved that such effects reverted to that minor. Thus, assuming that, in a scenario of processing of personal data of adolescents, this processing is reverted to the benefit of the adolescent himself, it would be possible to argue that this action would dispense with the consent of the adolescent’s guardian.
Upon establishing a restriction to the effect of requiring the specific and clear consent of at least one of the parents or legal guardian, the legislator did so specifically for children, excluding adolescents from this rule. It is not, therefore, a gap, but eloquent silence. Thus, there does not appear to be an additional requirement beyond the consent of the adolescent and/or the use of any of the legal bases of articles 7 or 11 of the LGPD in the case of data processing, including in the context of advertising.
However, the question is raised in the data protection system, with part of the legal scholarship indicating the need for guardian consent for both children and adolescents. It is hoped that the National Data Protection Authority can help to settle the issue by establishing clearer criteria regarding the processing of personal data regarding adolescents, including in contexts such as advertising.
 Per the terms of article 5, subsection X, of the LGPD, processing is all operations carried out with personal data, such as those relating to the collection, production, reception, classification, use, access, reproduction, transmission, distribution, processing, filing, storage, discarding, assessment, or control of the information, modification, dissemination, transfer, diffusion, or extraction.
 See Resolution No. 163/2014 of the National Council for the Rights of Children and Adolescents (Conanda).
 Article 2 of Conanda Resolution No. 163/2014.
 As an example, we have Prof. Diogo Coutinho, in a recently published article: “Publicidade Infantil: ilegal e ponto final” [“Advertising to Children: illegal, period”], available at https://www.jota.info/opiniao-e-analise/artigos/publicidade-infantil-ilegal-e-ponto-final-03022020 Accessed on: February 9, 2020.
 In that sense, Rosana Leal da Silva in "A Infância Conectada: A Proteção de Dados Pessoais de Crianças e Adolescentes em Perspectiva Comparada entre a União Europeia e o Brasil” [“The Protection of Personal Data of Children and Adolescents in a Comparative Perspective between the European Union and Brazil”], found in Direito e Internet IV [“Law and Internet IV”] (São Paulo: Quartier Latin, 2019), indicates that "according to the Brazilian civil law system, children and adolescents are incapable of performing valid legal acts, an incapacity that will be remedied by the representation or assistance of their parents or guardian. Requirement of consent correct and appropriate", pg. 279.