Colisão de direitos fundamentais: a proteção dos dados pessoais e a proteção à saúde e bem-estar por aplicativos de monitoramento via geolocalização

Abstract

The insertion of new technologies in the daily activities of citizens gave rise to new social phenomena that demanded innovations and adjustments from the legal system. Among the numerous changes in the legal scenario that changed the way users must run their machines, there is the need for disruptive innovations to have access to the personal data of those who use it to achieve the expected precision in the execution of their tasks. This collection of personal data, at first innocuous and beneficial for the user, in scenarios of insecurity can generate immeasurable damage to the data subject. In the context of the COVID-19 pandemic, as the use of users' sensitive personal data becomes necessary and urgent to stop the transmission of the virus, the debate on the protection of citizens' data is also highlighted. Therefore, the present research aims to analyze the collision between the fundamental right to protect personal data and the fundamental right to protect health and collective well-being, a conflict that arises from a hypothetical situation of compulsory use of monitoring applications. via geolocation. For that, the monograph uses the Content Analysis method to categorize and compare the collected data, uses as a basis for research the hypothetical method, as well as makes use of Robert Alexy's refined weight formula to identify an order of precedence between the conflicting fundamental rights. To adapt the monitoring software via geolocation of the hypothetical situation of the research to the Brazilian rules of data protection, the Four Step Test was used to identify the legitimate interest of the application. In the end, it is concluded that the fundamental right to protect health and collective well-being overrides the fundamental right to protect the personal data of application users, given that the risks and damages caused by the precedence of this right on the former have less weight compared to the reverse situation, an argument that is based on the implementation of the Alexian formula for resolving collisions between fundamental rights.