INTERNAL COMPLIANCE INVESTIGATIONS AND EMPLOYEE PRIVACY IN BRAZIL

Picture the following scenario: you are a compliance officer or an outside counsel and your boss has appointed you to lead a new internal compliance investigation. Your first task, he tells you, is to gather evidence on, and then interview, an employee of a Brazilian subsidiary of your company or client who may have paid bribes according to an anonymous report.

Even before booking your ticket to Rio de Janeiro, you need to understand and take into consideration the privacy protections Brazilian law affords employees, particularly with respect to their email accounts, computers, smartphones and instant messaging applications. Otherwise, local law may significantly affect your work or compromise its results.

Brazilian labour courts have not yet developed a clear and complete stance on a number of these issues. In this article, we provide an overview of the risks and cautionary measures that companies should consider to avoid violating their employee’s rights when conducing internal compliance investigations in Brazil.

Privacy rights in Brazil

The Brazilian Constitution guarantees the right to privacy and secrecy of correspondence to all citizens. Law No. 9296, of 24 July 1996, further regulates the interception of communications of any kind, allowing its use as evidence in court only if authorised by judicial order at the request of the police authority or public prosecutors during a criminal investigation or a criminal procedure.

Oct-Dec 2014 Issue

Mattos Muriel Kestener Advogados