A efetividade da função punitivo-pedagógica nas indenizações por danos morais nos vazamentos de dados à luz da LGPD: uma análise normativo-jurisprudencial

Abstract

The effectiveness of civil liability as an instrument for protecting personal data subjects is one of the central debates in contemporary private law in Brazil. Despite the entry into force of the General Personal Data Protection Law (LGPD) in 2020, data breaches continue to grow in number and scale, while judicial convictions remain at low levels and the sanctioning activity of the National Data Protection Authority (ANPD) is still incipient. This article aims to analyze the effectiveness of civil liability as an instrument for protecting the rights of personal data subjects in Brazil, with special focus on the punitive-pedagogical function of moral damage indemnifications arising from data breaches. To this end, the hypothetical-deductive method is adopted, with bibliographic, documentary and empirical analysis of decisions from the Superior Court of Justice and state courts. The results show that the current civil liability model has low deterrent capacity, due to jurisprudential oscillation regarding the characterization of moral damage, the low values of indemnifications set and the high rate of dismissed claims. It is concluded that the LGPD is not a merely symbolic law, but its effectiveness depends on consistent improvements: expanding the recognition of presumed moral damage, revising the criteria for setting the quantum of indemnification with incorporation of the punitive-pedagogical function, and strengthening the administrative action of the ANPD.