Data leaks and 'in re ipsa' moral damage comments on the Agravo em Recurso Especial nº 2.130.619/SP

Abstract

The judgment of the interlocutory appeal No. 2,130,619, by the Superior Court of Justice, highlighted that the leakage of non-sensitive personal data, in itself, does not give rise to moral damages. Therefore, this paper is divided into two sections. The first section aims to demonstrate the error of the Superior Court of Justice regarding the irrelevance of distinguishing between sensitive and non-sensitive data in light of the LGPD (General Data Protection Law), with consequent reflections on the evidentiary system, the duty to unify jurisprudence, and a return to the original status of moral damages as pain or suffering. The second section discusses the concept of lucrative wrongdoing in the processing of personal data and the need for a new form of redress through sub-objective liability, which combines an analysis of fault in determining the amount of compensation and the irrelevance of fault for the existence of liability. It is worth mentioning that this work draws upon jurisprudence, articles, and laws in its construction.