A responsabilidade do estado pela omissão específica na fiscalização do tratamento de dados pessoais: uma análise da atuação estatal frente às entidades vinculadas sob a perspectiva da lei geral de proteção de dados (LGPD) e da responsabilidade civil objetiva

Abstract

This research analyzes the civil liability of the State arising from its failure to supervise data processing carried out by entities of the Indirect Administration. In the current digital age and under the aegis of the General Data Protection Law (Law No. 13,709/2018) and Constitutional Amendment No. 115/2022, the protection of personal data has been elevated to the category of a fundamental right, imposing new duties on the Public Power. The objective of the research is to investigate the nature of state accountability when the Direct Administration fails to exercise administrative oversight over its affiliated entities. Using the hypothetical-deductive method, through bibliographic and documentary research, the study examines the historical evolution of the civil liability of the State and establishes the crucial distinction between generic and specific omission. Thus, it is demonstrated that the relationship of ministerial supervision creates a positive legal duty to act to ensure information security. Finally, it concludes that the State's inertia in demanding compliance with the LGPD does not constitute a mere failure to provide a service, but rather a specific omission, and therefore strict civil liability should be applied, based on the Theory of Administrative Risk, dispensing with the proof of fault and ensuring compensation for damages caused by institutional vulnerability in the processing of personal information.