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German Federal Ministry of Justice and Consumer
T he rapid development of new information and communication technologies
has changed people’s everyday life and consumption patterns signiﬁcant-
ly. The worldwide spread of those technologies provides many innovations for
Protection
State Administration for Industry and Commerce of the
People´s Republic of China
consumers, but it can also bear risks, such as the indiscriminate collection,
National Consumer Secretariat, Ministry of Justice of the
storage and cross-border ﬂow of personal data, illegal spying on Internet ac-
Federal Republic of Brazil
tivities, dissemination of personal information, and abuse of user passwords.
Deutsche Gesellschaft für Internationale Zusammenarbeit
The study deals with the current state of consumer data protection law in Brazil,
(GIZ) GmbH (eds.)
China and Germany from a comparative perspective. It covers the main legal
issues of consumer privacy and data protection in these countries and seeks to
explain current issues and case law concerning consumer data protection from
a practical perspective.
Consumer Data Protection in Brazil,
Consumer Data Protection in Brazil, China and Germany

China and Germany
A Comparative Study
Board of Editors
Rainer Metz
Jörg Binding
Pan Haifeng
Coordinating Editor
Florian Huber
ISBN: 978-3-86395-236-5 Universitätsverlag Göttingen Göttingen University Press

Consumer Data Protection in Brazil, China and Germany
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0

International License.
Published by Göttingen University Press 2016
Consumer Data Protection
in Brazil, China and
Germany
A Comparative Study
Edited by
German Federal Ministry of Justice and
Consumer Protection
State Administration for Industry and
Commerce of the People´s Republic of China
National Consumer Secretariat, Ministry of
Justice of the Federal Republic of Brazil
Deutsche Gesellschaft für Internationale
Zusammenarbeit (GIZ) GmbH
Board of Editors: Rainer Metz, Jörg Binding,

Pan Haifeng
Coordinating Editor: Florian Huber
Göttingen University Press

2016
Bibliographic information published by the Deutsche Nationalbibliothek
The Deutsche Nationalbibliothek lists this publication in the Deutsche
Nationalbibliografie; detailed bibliographic data are available on the Internet at
http://dnb.dnb.de
This work is protected by German Intellectual Property Right Law.

It is also available as an Open Access version through the publisher’s homepage and
the Göttingen University Catalogue (GUK) at the Göttingen State and University
Library (http://www.sub.uni-goettingen.de).
The license terms of the online version apply.
Set and layout: Franziska Pannach

Cover design: Jutta Pabst
Cover picture: Maksim Kabakou/shutterstock.com
© 2016 Göttingen University Press

http://univerlag.uni-goettingen.de
ISBN: 978-3-86395-236-5
Table of Contents
Table of Contents.............................................................................................................. 1
Chapter 1: Study Structure ........................................................................................... 7

A. Project Summary ................................................................................................... 7
B. Research Activities ................................................................................................ 9
C. General Overview of the Study ........................................................................ 10
Chapter 2: Country Studies on Consumer Data Protection

(Brazil, China, Germany) and International Initiatives ............................ 13
A. Consumer Data Protection in Brazil (Prof. Dr. Danilo Doneda) ................... 13
I. Introduction ...................................................................................................... 13
II. Overview and scope of legislation addressing consumer data
protection ................................................................................................ 14
1. Character of legislation .................................................................. 14
2. General legal framework for consumer data protection .......... 17
3. Telecommunication ....................................................................... 17
4. Banks ................................................................................................ 18
5. Media-related acts ........................................................................... 18
2 Table of Contents
6. Specific acts for e-commerce ........................................................ 18

III. Applicability of data protection acts .......................................................... 19
IV. Definitions of consumer and data .............................................................. 20
V. General guiding principles ............................................................................. 22
VI. Collecting, storing and processing consumer data ................................... 24
VII. Approaches to consent ............................................................................... 24
VIII. Publicity and transparency ........................................................................ 25
IX. Data security .................................................................................................. 26
X. Data control, data portability and the right to access, modify and
delete collected data ............................................................................... 26
XI. Roles and responsibilities of intermediaries .............................................. 27
XII. Access to user data by third parties .......................................................... 28
XIII. Provisions on data retention .................................................................... 28
XIV. Transfer of data on an international scale, transfer to third
countries and requirements for data transfer outside the country . 30
XV. Enforcement................................................................................................. 30
1. Civil law ............................................................................................ 32
2. Criminal law..................................................................................... 33
3. Administrative law .......................................................................... 33
XVI. Role of self-regulation and co-regulation ............................................... 34
B. Consumer Data Protection in China (Prof. Dr. Zhou Hanhua) ..................... 35
I. Introduction ...................................................................................................... 35
protection ................................................................................................ 36
1. Character of the legislation ........................................................... 36
4. Banks ................................................................................................ 45
5. Media-related acts ........................................................................... 47
6. Specific acts for e-commerce ........................................................ 48
IV. Definition of consumer and data ................................................................ 50
V. General guiding principles ............................................................................. 51
VII. Approaches to consent ............................................................................... 54
IX. Data security .................................................................................................. 57
Table of Contents 3
delete collected data ............................................................................... 58
XI. Roles and responsibilities of intermediaries .............................................. 59
XII. Access to user data by third parties .......................................................... 62
XIII. Provisions on data retention .................................................................... 63
countries and requirements for data transfer outside
the country .............................................................................................. 64
XV. Enforcement ................................................................................................ 64
1. Civil law............................................................................................ 64
2. Criminal law .................................................................................... 66
3. Administrative law.......................................................................... 68
XVI. Role of self-regulation and co-regulation ............................................... 70
C. Consumer Data Protection in Germany (Prof. Dr. Gerald Spindler)............. 71
I. Introduction ...................................................................................................... 71
protection ................................................................................................ 72
1. Character of the legislation ........................................................... 72
4. Specific acts for e-commerce........................................................ 76
IV. Definitions of consumer and data .............................................................. 81
1. Personal data under the Data Protection Directive .................. 82
2. Personal data under the General Data
Protection Regulation ....................................................... 88
V. Basic concepts ................................................................................................. 91
VII. Approaches to consent .............................................................................. 95
1. Informed consent according to the Data Protection
Directive ............................................................................. 96
2. Informed consent and obligation of transparency under
the General Data Protection Regulation ....................... 97
1. Information ..................................................................................... 99
2. Notification ................................................................................... 100
3. Privacy by design and default ..................................................... 100
4. Privacy seal .................................................................................... 101
4 Table of Contents
IX. Data security ................................................................................................ 102

delete data collected ............................................................................. 103
XI. Roles and responsibilities of intermediaries ............................................ 104
1. Controller and processor under the Data Protection
Directive ........................................................................... 105
2. Controller and processor under the General Data
Protection Regulation ..................................................... 112
XII. Access to user data by third parties ........................................................ 115
XIII. Provisions on data retention .................................................................. 115
countries and requirements for data transfer
outside the country .............................................................................. 116
1. By processor outside the EU/
European Economic Area (EEA) ................................ 116
2. Data transfer to third countries .................................................. 116
XV. Enforcement............................................................................................... 125
1. Civil law .......................................................................................... 125
2. Criminal law................................................................................... 126
3. Administrative law ........................................................................ 127
4. The Data Protection Officer ...................................................... 128
XVI. Role of self-regulation and co-regulation ............................................. 133
D. Review of International Initiatives on Consumer Data Protection
(Consumers International) ..................................................................... 134
I. UN Guidelines for Consumer Protection .................................................. 134
II. OECD Guidelines ........................................................................................ 135
III. The Global Privacy Enforcement Network (GPEN) ........................... 141
IV. Convention 108 ........................................................................................... 145
V. Regional Initiatives........................................................................................ 147
1. Asia Pacific Economic Cooperation (APEC) .......................... 147
2. Association of South East Asian Nations (ASEAN).............. 149
3. Economic Commission for Latin America and
the Caribbean (ECLAC)................................................. 150
Chapter 3: Law in Practice: Current Issues, Challenges and Case-Law

for the Enforcement of Laws and Regulations on
Consumer Data Protection ............................................................................... 153
Table of Contents 5
A. Current Judicial and Administrative Issues of Consumer Data

Protection in Brazil (Prof. Dr. Danilo Doneda) .............................. 153
I. Credit scoring .................................................................................................. 153
1. Case ................................................................................................ 154
2. Concept of credit scoring ............................................................ 155
3. Credit risk assessment in general contracts .............................. 156
4. Regulation of consumer credit databases in the
Consumer Defense Code ............................................... 156
5. Positive Credit Information Law (Law No. 12.414 of 2011) 157
6. Legality of the credit scoring system ......................................... 159
7. Limitation: privacy and transparency ........................................ 159
8. Moral damages .............................................................................. 160
II.Consumer rights violations databases ........................................................ 160
1. Sindec ............................................................................................. 160
2. Consumidor.gov.br ...................................................................... 161
B. Current Consumer Data Protection Issues Before Chinese Tribunals
(Prof. Dr. Zhou Hanhua) ..................................................................... 163
I. Civil claims ...................................................................................................... 163
1. Illegal collection and use of personal information .................. 163
2. Disclosure and illegal release of customers’ personal
information ...................................................................... 164
3. Sending electronic advertisements without customers’
prior consent .................................................................... 168
4. The boundaries of the legal protection of privacy .................. 169
II.Criminal justice ............................................................................................... 170
1. Acquiring personal information ................................................. 170
2. Selling and illegally providing citizens’ personal
information ...................................................................... 173
3. Criminal means of illegally acquiring citizens’ personal
information ...................................................................... 175
4. “Aggravated circumstances”....................................................... 177
III. Administrative enforcement of law.......................................................... 179
C. Current Issues and Case Law Concerning Consumer Data Protection
in Germany and Europe (Prof. Dr. Gerald Spindler) .................... 181
I. Data protection in social networks.............................................................. 181
II. Credit scoring ................................................................................................ 181
III. Cloud computing......................................................................................... 184
IV. “Big data” ..................................................................................................... 185
V. Profiling .......................................................................................................... 186
6 Table of Contents
VI. Unsolicited e-mails ...................................................................................... 189

VII. Rating platforms ........................................................................................ 190
VIII. The right to be forgotten ........................................................................ 192
IX. Data Retention............................................................................................. 193
D. Challenges of New Technologies for Consumer Data Protection
(Privacy International with Consumers International) ............................. 195
I. Cloud Storage .................................................................................................. 196
II. Cloud Computing ......................................................................................... 197
III. Big data ......................................................................................................... 197
IV. Social Media ................................................................................................. 198
V. Internet of Things ......................................................................................... 198
VI. Smart Cities, Buildings and People........................................................... 198
VII. Privacy friendly technologies ................................................................... 199
VIII. Disk encryption ........................................................................................ 199
IX. Browse configurations and Ad-blocks ..................................................... 199
X. HTTPS/TLS ................................................................................................. 200
XI. Virtual Private Networks (VPNs)............................................................. 200
XII. The Onion Router (TOR) ........................................................................ 200
XIII. Off the Record (OTR) ............................................................................ 201
Chapter 4: Comparative Thematic Issues of Consumer Data Protection . 203

I. Fundamentals and the existing legal framework ....................................... 203
II. Applicability of data protection acts .......................................................... 204
1. Applicability to cross-border cases ............................................ 205
2. Applicability on the national level.............................................. 206
III. Personal data ................................................................................................ 206
IV. General guiding principles ......................................................................... 207
V. Restrictions to the collection, processing and transfer of
(consumer) data ................................................................................... 211
VI. Approaches towards the principle of consent ........................................ 212
VII. Transparency .............................................................................................. 213
VIII. Responsibility............................................................................................ 215
IX. International transfer of data..................................................................... 218
X. Data retention................................................................................................ 218
XI. Enforcement ................................................................................................ 219
XII. Self-regulation and co-regulation ............................................................ 221
Chapter 1
Study Structure
Chapter 1: Study Structure
A. Project Summary
The rapid development of new information and communication technologies has
changed people’s everyday life and consumption patterns significantly. The
worldwide spread of those technologies provides many innovations for consum-
ers, including new communication channels as well as access to a wide range of
goods and services by e-commerce and online payment. The use of these innova-
tions offers consumers many advantages and benefits, but it can also bear risks,
such as the indiscriminate collection, storage and cross-border flow of personal
data, illegal spying on Internet activities, dissemination of personal information,
and abuse of user passwords. The said risks can lead to personal and economic
damages and impairments. Therefore, a more effective protection of consumer
8 A. Project Summary
data through an international cooperation involving developed and developing

countries with emerging markets is necessary.
There are already initiatives of cooperation, such as the harmonization of con-
sumer data protection in the European Union (EU), the European Economic
Area (EEA) and the Council of Europe. Examples of the said initiatives in the EU
in terms of legislation are the Data Protection Directive and the proposed General
Data Protection Regulation of the EU. Another example is the International Con-
ference of the Commissioner for Data Protection. Although these initiatives rep-
resent an advance, consumer and data protection policies remain limited regionally
and fail to involve key players of emerging economies efficiently. More recent
developments demonstrate that awareness in emerging countries, such as China
and Brazil, is growing regarding the importance of adequate consumer protection.
Some recent examples are the enactment of the revised regulations on consumer
protection in China or the Internet Civil Rights Framework in Brazil.
Against this background, the German Federal Ministry of Food, Agriculture
and Consumer Protection commissioned the German Agency for International
Cooperation (GIZ: Deutsche Gesellschaft für Internationale Zusammenarbeit) in
2013 to implement the project “Consumer Data Protection in Emerging Economies”. In
2014, due to the reassignment of consumer protection to the German Federal
Ministry of Justice and Consumer Protection (BMJV: Bundesministerium der
Justiz und für Verbraucherschutz), the project continued in cooperation with this
ministry. Currently, the project has three main partners: the Chinese State Admini-
stration for Industry and Commerce (SAIC), the Brazilian Ministry of Justice
(Ministro da Justiça) with its National Consumer Secretariat (MoJ for its initials in
English) and the BMJV.
The objective of this project is to improve the conditions of cooperation be-
tween Germany, China and Brazil in the field of consumer data protection. The
implementation of the project is based on the principle of an equal partnership
between the countries participating. Accordingly, key actions of the project are
planned under the responsibility of a Steering Committee, composed of the repre-
sentatives of the participating countries and the non-governmental organization
(NGO) Consumers International (CI). The Organization for Economic Co-
operation and Development with its Committee on Consumer Policy (OECD-
CCP) and the Global Privacy Enforcement Network (GPEN) have also been
involved in the activities of the project. Additionally, consumer organizations,
trade associations and academic experts are participating in the project’s initiatives
and activities.
The project seeks to engage at a high level with governments in the three
countries through initiating an international dialogue to form a basis for close
political and technical cooperation, to conduct a comparative research study, to
analyze the current situation of consumer data protection and privacy in the three
countries, and to use the results of the study to develop an international e-learning
Chapter 1: Study Structure 9
platform to improve human capacity on those issues. In order to achieve the ob-
jective mentioned, this project uses a methodology which consists of political and
professional dialogue (e.g. conferences, study tours, workshops, experts meetings)
and training strategies (including training events, elaboration of training material
and concepts of e-learning tools).
Firstly, the national regulators and governmental authorities concerned shall
increase their awareness of comparative experiences and best practices using data
protection regulations in order to include possible law reforms in their own na-
tional agendas. The international context of consumer data protection is also dis-
cussed with the government organizations, consumer organizations and other
international actors participating. Conferences and workshops allow a direct ex-
change between members of state institutions, consumer organizations, experts
from academia and the private sector.
Secondly, the comparative study on legal and practical aspects of consumer
data protection in the three countries participating in the project will allow gov-
ernmental institutions and NGOs to be informed of the current state of consumer
data protection in Germany as well as in Brazil and China, two of the BRICS
countries (Brazil, Russia, India, China and South Africa). The technical basis of
the comparative study is established in reports by a group of international experts
on consumer and data protection issues.
Thirdly, the findings of the comparative study will be included in an e-learning
platform for training activities on consumer data protection, complementing and
sharing knowledge for the development of future research and advocacy ideas.
The development of this e-learning platform will be based on the reports and
comparative academic training events in China and Brazil which are carried out
for staff members from consumer organizations or state institutions in those
countries. The e-learning tool will be designed as a multimedia online platform
with a modular structure, which allows its users an easy adaptation to their coun-
try’s specific context through the integration of different language versions of
various modules. In addition, it offers a flexible use for different stakeholders, e.g.
governmental institutions and consumer organizations. The e-learning tool will be
elaborated during the second semester of 2015 and the beginning of 2016.
B. Research Activities
The work on the present comparative research study began in 2013. In October
2013, a German delegation on consumer privacy issues visited China to familiarize
themselves with the status quo of consumer data protection. It held talks with the
Ministry of Industry and Information Technology (MIIT), SAIC, the China Con-
sumers’ Association (CCA) and several companies. The delegation completed and
presented a report to the GIZ with comprehensive recommendations. The next
10 C. General overview of the Study
step was the appointment of the organization CI in 2014. Consumers Interna-

tional supports the project, mainly in cooperation with Brazil, in the preparation
of technical studies and the development of the e-learning platform. In addition, a
group of international experts was established in 2014. The purpose of the said
group is to discuss current national and international developments in the political
and legal context of consumer data protection. This group is composed of Prof.
Dr. Gerald Spindler, professor at the Faculty of Law of the Georg August Univer-
sity of Göttingen, Germany, Prof. Dr. Zhou Hanhua, Assistant Director of the
Institute of Law of the Chinese Academy of Social Science (CASS), Prof. Dr.
Danilo Doneda, consultant to the National Secretary for Consumers of the Brazil-
ian Ministry of Justice, and Amanda Long, Antonino Serra Cambaceres and Joana
Varon Ferraz of CI.
The first meeting of the Steering Committee, a kick-off conference and the
first expert workshop on the creation of a comparative technical study between
the countries (part of the project) were carried out in Berlin in November 2014.
The meeting of the Steering Committee was attended by governmental representa-
tives of the partner countries, international experts of CI and staff of the GIZ.
The workshop was conducted by country experts of the project countries and the
outline of the study was reviewed by the Steering Committee. The kick-off con-
ference on cooperation with emerging economies in the field of consumer data
protection was attended by high-level governmental representatives, including the
German Minister of Justice and Consumer Protection, the German Federal
Commissioner for Data Protection and Freedom of Information, the designated
European Data Protection Officer and representatives of international organiza-
tions, such as the OECD and GPEN. Subsequently, the second expert meeting
was held in Germany in April 2015 to discuss the status quo of consumer data
protection from a comparative law perspective. Additional activities were planned
to encourage the international cooperation and political dialogue on consumer
data protection during 2015 and 2016.
C. General Overview of the Study

The study deals with the current state of consumer data protection law in the
partner countries and practical developments in this field. Its results shall serve as
a conceptual basis for any future cooperation among the partner countries and
constitute a useful tool for actors engaged in international efforts to regulate data
collection, usage, security, and consumer protection.
Chapter 2 of the report covers the main legal issues of consumer privacy and
data protection of the partner countries. Among the topics analyzed from a com-
parative point of view are the following: an overview of the scope of legislation
addressing consumer data protection (including the subject of the legislation, the
Chapter 1: Study Structure 11
general legal framework for consumer data protection, and sectorial laws and
regulations concerning telecommunications, banks, media-related and specific acts
for e-commerce); the territorial and international applicability of data protection
acts; central definitions and concepts of the notion of consumer and data; the
general guiding principles established in laws and regulations; the concepts of
collecting, storing and processing consumer data and the approaches to consum-
ers’ consent; basic rules on publicity and transparency; data security, data control,
data portability and the right to access, modify and delete collected data; the roles
and responsibilities of intermediaries; access to user data by third parties, provi-
sions on data retention; regulations concerning the transfer of data on an interna-
tional scale, transfer to third countries and requirements for data transfer outside
the country; the enforcement of consumer data protection (through civil, criminal
and administrative law); and, finally, the current role of self-regulation and co-
regulation.
Chapter 2 also analyzes and discusses the international standards in the field,
among them the United Nations Guidelines for Consumer Protection, the Guide-
lines on the Protection of Privacy and Transborder Flow of Personal Data, elabo-
rated by the OECD, the Recommendation on Cross-border Cooperation in the
Enforcement of Laws Protecting Privacy of the GPEN, the Convention for the
Protection of Individuals with regard to automatic processing of personal data,
adopted by the Council of Europe, or the Framework for Information Privacy
Protection developed by the Asia Pacific Economic Cooperation’s (APEC) Elec-
tronic Commerce Steering Group (ECSG).
Chapter 3 seeks to explain current issues and case law concerning consumer
data protection from a practical perspective. Firstly, it concentrates on the prob-
lem of consumer profiling and case law related to that phenomenon, as well as the
databases which currently exist to report consumer rights violations in Brazil.
Secondly, it deals with current issues of consumer data protection before Chinese
tribunals. The relevant case law regarding civil claims will be analyzed within four
topics: illegal collection and use of personal information for economic or other
reasons; disclosure and illegal release of consumers’ personal information; adver-
tisements without the prior consent of consumers and clients; and the boundaries
of legal protection of the right to privacy. Criminal justice case law addresses ille-
gally acquired personal information, selling and illegally providing citizens’ per-
sonal information to third persons, the use of different criminal means to acquire
citizens’ personal information illegally, and the qualification of certain “grave cir-
cumstances” of criminal acts. Finally, current developments regarding the admin-
istrative enforcement of consumer data protection laws and regulations by gov-
ernmental authorities in China are illustrated.
Thirdly, regarding practical experiences from Germany and Europe, the study
focuses on credit scoring and related databases, data protection in social networks,
cloud computing, “big data,” the existence of rating platforms on the Internet,
12 C. General overview of the Study
profiling, unsolicited e-mails (spam), the role of online search engines and the
right to be forgotten in the jurisprudence of the European Court of Justice, as well
as its judgment on data retention.
Finally, the chapter addresses the current challenges of new technologies for con-
sumer data protection.
In Chapter 4, the main topics contained in every country report are summa-
rized and compared. A summary and comparison of the main topics found in
each country report are offered here.
The whole study, which includes the developments in consumer data protec-
tion up to August 2015 1, shall serve as a tool for further cooperation between
Brazil, China and Germany and facilitate discussions for the improvement of con-
sumer data protection policies and regulations through its dissemination and im-
plementation within and outside of the said countries. The results of the technical
study also serve as a basis for the e-learning tool being designed currently, for
future training events for consumer organizations and policy makers, and for con-
sumer education in general.
1 After the agreed submission deadline for the country reports of this study elaborated between 2014
and 2015 on the developments in the field of consumer data protection, the Permanent Repre-
sentatives Committee of the Council of the European Union confirmed on 18 December 2015
the revised compromise texts of the “General Data Protection Regulation” and the “Directive
of the European Parliament and of the Council on the protection of individuals with regard to
the processing of personal data by competent authorities for the purposes of prevention, inves-
tigation, detection or prosecution of criminal offences or the execution of criminal penalties and
the free movement of such data”, agreed with the European Parliament as part of the European
data protection reform. The agreement had been reached between the Council of the EU, the
Parliament and the European Commission on the 15 December 2015. On 17 December 2015,
the European Parliament's Civil Liberties, Justice and Home Affairs (LIBE) Committee en-
dorsed the texts agreed in the trilogies. They are expected to be submitted in early 2016 for
adoption by the Council and, subsequently, by the Parliament. The regulation and the directive
are likely to enter into force in spring 2018.
Chapter 2
Country Studies on Consumer Data Protection
(Brazil, China, Germany) and
International Initiatives
Chapter 2: Country Studies
A. Consumer Data Protection in Brazil
A. Consumer Data Protection in Brazil

(Prof. Dr. Danilo Doneda)
I. Introduction
Brazil, with over 202 million inhabitants, has the fifth largest population in the
world. 2 It has the largest national economy in Latin America, the world’s seventh
largest economy at market exchange rates (with a nominal GDP of US$ 2.24 tril-
2 See Brazilian Institute for Geography and Statistics,

<ftp://ftp.ibge.gov.br/Estimativas_de_Populacao/Estimativas_2014/estimativa_dou_2014.pdf>
(last accessed June 26, 2015).
14 A. Consumer Data Protection in Brazil
lion and a GDP per capita of US$ 11,067 in 2014) and the seventh largest econ-
omy in purchasing power parity. There were over 271 million registered mobile
phones subscriptions in Brazil in 2013, which represents around 135 % of Brazil’s
population. 3 By 2013, an estimated 51.6 % of Brazilians had access to Internet.
Finally, e-commerce is estimated to have grown 26 % between 2013 and 2014,
with an economic volume of US$ 13.4 billion. 4
II. Overview and scope of legislation addressing consumer data protection
1. Character of legislation
The legal framework of consumer and data protection is composed of the Federal
Constitution of October 5, 1988, and several laws, among them the Civil Code
(Law No. 10.406 of 2002), 5 the Consumer Defense Code (CDC; Law No. 8.078
of 1990), 6 the Credit Information Law (Law No. 12.414 of 2011), the Access to
Information Law (Law No. 12.527 of 2011), and the Civil Rights Framework for
the Internet (Law No. 12.965 of 2014). 7 These acts can be described collectively as
the Data Privacy Regulations.
In general terms, the constitution protects the rights to privacy, including se-
crecy of the following: correspondence, bank operations, telegraphic communica-
tions, telephone communications, and data communications. The Civil Code al-
lows individuals to seek injunctions before any relevant court to impede or cease
any privacy violation. The CDC, as the main consumer law, constitutes the legal
regime of regulations concerning consumer protection issues. However, despite
some sector laws governing the telecommunications and Internet branch, there is
no general data protection law enacted in Brazil as of today. Therefore, the legal
framework for the protection of data is formed by the general principles of pro-
tection to privacy and intimacy contained in the Brazilian Federal Constitution
and national laws. Those general principles and provisions on data protection and
privacy can be derived from the constitution, the Brazilian Civil Code, and laws
and regulations that address particular types of public and private relationships,
different sectors (e.g. financial institutions, health industry, telecommunications),
3 <http://www.factfish.com/statistic-country/brazil/mobile+cellular+subscriptions> (last accessed

June 26, 2015).
4<http://info.digitalriver.com/rs/digitalriver/images/DigitalRiverCountrySpotlightBrazilValueBrief.
pdf> (last accessed June 26, 2015).

5 Law No. 10.406 of January 10, 2002 (Civil Code; Código Civil),
<http://www.wipo.int/wipolex/en/details.jsp?id=9615> (last accessed June 26, 2015).

6 Law No. 8.078 of September 11, 1990 (CDC; Código de Defesa do Consumidor),
<http://www.procon.sp.gov.br/texto.asp?id=745> (last accessed August 7, 2015).

7 Law No. 12.965 of April 23, 2014 (Marco Civil da Internet – Civil Rights Framework for the Internet;
also called the Internet Act), <http://www.planalto.gov.br/ccivil_03/_ato2011-

2014/2014/lei/l12965.htm> (last accessed June 26, 2015).
Chapter 2: Country Studies 15
and the treatment and access to documents and information handled by govern-
mental entities and bodies.
With regard to the constitutional level, the Federal Constitution of Brazil pro-
vides, on the one hand, for the protection of the right to freedom of expression 8
and the rights to privacy, private life and intimacy, honor, and the image of per-
sons, protects the confidentiality of correspondence and telegraphic, data and
telephone communication, and ensures people’s access to information from gov-
ernmental institutions. 9 The latter are enforced through the writ of habeas data,
which was introduced into the constitution in 1988 and regulated by Law No.
9.507 of 1997 (Habeas Data Law), and has, since then, influenced the concepts of
the right to privacy and data protection in other Latin American countries. Brazil,
thus, responded to social demands after the end of the military dictatorship to
grant access to the information gathered by governmental bodies. 10 This historical
circumstance, rather than the need for a data protection statute among individuals,
was the main reason for the creation of a constitutional and legal framework re-
garding data protection. This constitutional remedy is available for individuals to
grant access to information related to the individual, which is registered on gov-
ernmental or public databases, to correct or update data or to proceed with anno-
tations or clarifications on public databases concerning pending litigation. 11 Any
database including the following information is considered a public database and,
therefore, subject to habeas data (Habeas Data Law): information that is or may be
transmitted to third parties, and information that is not exclusively used by the
governmental agency or legal entity that generated or managed that information. 12
However, the habeas data writ, considered as a costly and slow remedy as it must
8 See Federal Constitution, Article 5, IV: “[…] the expression of thought is free, and anonymity is
forbidden.”
9 See Federal Constitution, Article 5: “All persons are equal before the law, without any distinction
whatsoever, Brazilians and foreigners residing in the country being ensured of inviolability of
the right to life, to liberty, to equality, to security and to property, on the following terms […]:
X – the privacy, private life, honor and image of persons are inviolable, and the right to com-
pensation for property or moral damages resulting from their violation is ensured; […]
XII – the secrecy of correspondence and of telegraphic, data and telephone communications is
inviolable, except, in the latter case, by court order, in the cases and in the manner prescribed by
law for the purposes of criminal investigation or criminal procedural finding of facts; […]
LXXII – habeas data shall be granted:
a) to ensure the knowledge of information related to the person of the petitioner, contained in
records or data banks of government agencies or of agencies of a public character;
b) for the correction of data, when the petitioner does not prefer to do so through a confidential
process, either judicial or administrative.”
10 Doneda/Schertel Mendes, Protection in Brazil: New Developments and Current Challenges, in: Gut-
wirth/Leenes/De Hart (Eds.), Reloading Data Protection. Multidisciplinary Insights and Contem-
porary Challenges, 2014, p. 5.
11 See Federal Constitution, Article 5, LXXII: “habeas data shall be granted: a) to ensure the knowl-
edge of information related to the person of the petitioner.”

12 See Law No. 9507 of 1997, Article 1, sole paragraph.
be presented by a lawyer after the plaintiff`s unsuccessful request for the data
from the defendant, was neither understood as a modern data protection tool nor
did it develop into such. 13 Instead, other instruments were developed in Brazilian
law to address the increase of electronic data processing, e.g. the Credit Informa-
tion Law and the Access to Information Law.
On the other hand, the Federal Constitution refers directly to consumer pro-
tection, both in Article 5, XXXII, 14 which considers consumer protection as a
fundamental right, and Article 170 V, 15 which establishes consumer protection as
a principle of the national economic order, as well in Article 48 of its Temporary
Provisions, creating an obligation to enact a CDC. 16 That code provides for a
multifaceted framework to address consumer protection issues and balance the
information and power asymmetries between consumers and business enter-
prises. 17 It entails a variety of principle-based norms, which are broad enough to
offer solutions to new conflicts related to information technology. 18
Later, the Credit Information Law (Law No. 12.414 of 2011) was enacted to regu-
late the use of credit databases, allowing data controllers to register the so-called
“positive” credit information, i.e. information about the consumer’s general finan-
cial situation, and not only restricted to unpaid debts, which was the only credit
data that the CDC allowed to be registered. 19
Finally, the Internet Civil Rights Framework (Law No. 12.965 of 2014) deals
specifically with issues affecting the collection, maintenance, treatment, and use of
personal data on the Internet. It contains several provisions concerning the pro-
13 Doneda/Schertel Mendes, Protection in Brazil: New Developments and Current Challenges, in: Gut-
wirth/Leenes/De Hart (Eds.), Reloading Data Protection. Multidisciplinary Insights and Contem-
porary Challenges, 2014, p. 6.
14 See Federal Constitution, Article 5, XXXII: “the State shall provide, as set forth by law, for the
defense of consumers.”
15 See Federal Constitution, Article 170, V: “The economic order, founded on the appreciation of
the value of human work and on free enterprise, is intended to ensure everyone a life with dig-
nity, in accordance with the dictates of social justice, with due regard for the following princi-
ples: […] V. consumer protection.”
16 See Temporary Constitutional Provisions Act, Article 48: “The National Congress, within one
hundred and twenty days of the promulgation of this Constitution, shall draw up a consumer
defense code;” <http://www.v-brazil.com/government/laws/ADCT.html> (last accessed June
26, 2015).
17 Doneda/Schertel Mendes, Protection in Brazil: New Developments and Current Challenges, in:
Gutwirth/Leenes/De Hart (Eds.), Reloading Data Protection. Multidisciplinary Insights and

Contemporary Challenges, 2014, p. 6; Lima Marques/Herman Benjamin/Miragem, Comentários ao
Código de Defesa do Consumidor, Revista dos Tribunais, 2006.
18 Doneda/Schertel Mendes, Protection in Brazil: New Developments and Current Challenges, in:
Gutwirth/Leenes/De Hart (Eds.), Reloading Data Protection. Multidisciplinary Insights and Con-
temporary Challenges, 2014, p. 6.
19 For more details, see Doneda/Schertel Mendes, Protection in Brazil: New Developments and Current
Challenges, in: Gutwirth/Leenes/De Hart (Eds.), Reloading Data Protection. Multidisciplinary In-
sights and Contemporary Challenges, 2014, pp. 8-10.
tection of privacy and data protection. Its first draft was the result of a consulta-
tive process through the Internet, which resulted in a principle-orientated statute,
and whose main aim is to assure the existence of a set of rights for Internet users.
During the legislative process, the parliament decided to include more specific
rules on data protection and privacy. The result was a text with a rather impressive
length of provisions on privacy. However, it must be born in mind that it cannot
be considered a general data protection law, as it only applies to Internet-related
issues without including general provisions and principles regarding data protec-
tion.
2. General legal framework for consumer data protection

As explained before, Brazil does not currently have a general law or legal frame-
work concerning data protection. Several laws (CDC, Credit Information Law,
Access to Information Law, and the Internet Civil Rights Framework) regulate
relevant issues of consumer data protection, but are limited with regard to its
scope of applicability. Therefore, one has to draw on general principles of data
protection derived from constitutional provisions concerning privacy and data
protection.
3. Telecommunication
Telecommunication issues are regulated by the General Telecommunications Act
(Law No. 9.472 of 1997), which regulates the exploitation of telecommunication
services. It establishes a series of rights for telecommunication services users,
among them the right to confidentiality of their communications. 20 In the regula-
tory field, the Brazilian Telecommunications Agency (ANATEL) included provi-
sions about privacy in the General Consumer Rights Regulation (Resolution
632/2014). 21 It must be stressed that telecommunication services are also subject
to consumer law and the applicable consumer privacy provisions when provided
to a consumer.
20 See Article 3, V. “Users of telecommunication services have the right to: […] the inviolability and
secret of their communications, except in the cases and conditions provided by the Constitution
or the Law.”
21 See Article 3, VII. “The consumer of the services related to this regulation have the right, not-
withstanding the legislation and the regulation specific to each of these services, to: […] the pri-
vacy in the billing documentation and in relation to the use of their personal data by the pro-
vider of the service.”
4. Banks
The CDC protects personal data, specifically those contained in databases held by
banks and credit agencies. 22 The confidentiality of financial data is also mentioned
in the Complementary Law No. 105 of 2001. 23 According to this law, every finan-
cial institution must assure the confidentiality of its transactions and services,
which include the personal data involved. 24
5. Media-related acts
What can be described as media regulation in Brazilian law is, as of today, basically
a set of rules governing the concession of licenses to operate communication ser-
vices. There are discussions regarding the applicability of these rules to Internet-
based services (such as rules governing accessibility to the content of streaming
services). Nevertheless, there are no specific rules of media regulation concerning
privacy and data protection.
6. Specific acts for e-commerce

The National Plan on Consumption and Citizenship (Plano Nacional de Consumo e
Ciudadania – Plandec) was proposed by Decree No. 7.963 of 2013, 25 with the ob-
jective of promoting consumer protection in Brazil through the integration and
coordination of policies, programs and actions. 26 Among the main goals of De-
cree No. 7.963 is the protection and promotion of privacy, confidentiality and
22 Article 43 of the Consumer Protection Act reads as follows: “The consumer, without prejudice to
the provisions of the article 86, shall have free access to any of his own data informed in refer-
ence files, index cards, records, personal and consumer data, as well as their respective sources.
Paragraph 1. – Consumers’ data and reference files shall be objective, clear, true and compre-
hensively written, not bearing any negative information concerning a period of time of more
than five years.
Paragraph 2. – If not requested, the consumer shall be communicated in written form about the
inclusion of his name in any reference file, index card, register, personal and consumer data.
Paragraph 3. – Whenever finding any inaccuracy in his data and records, the consumer shall be
entitled to require the prompt correction, and the person in charge of such records shall com-
municate the alteration, within five weekdays, to any possible addressee of the incorrect infor-
mation.
Paragraph 4. – Consumers’ databases, reference files, credit protection services and others re-
lated, shall be understood as public entities.
Paragraph 5. – Once extinguished the time for collecting consumers’ debts, the respective Credit
Protection Services shall no longer provide any information that might prevent or make it diffi-
cult to consumers a new access to credit operations before suppliers.”
23 <http://www.planalto.gov.br/ccivil_03/leis/LCP/Lcp105.htm> (last accessed August 7, 2015).
24 See Article 1. “The financial institutions shall keep the confidentiality of their active and passive
transactions and services rendered.”

25 <http://www.planalto.gov.br/ccivil_03/_Ato2011-2014/2013/Decreto/D7963.htm> (last ac-
cessed June 26, 2015).

26 See Article 1 of Decree No. 7.963 of 2013.
security of personal data. It was enacted together with the Decree No. 7.962, 27
which specifically provides for new rules for e-commerce in order to enhance the
quality of information concerning products, services and suppliers. 28
III. Applicability of data protection acts

The Civil Code applies to private relationships involving individuals and legal
entities. As data protection acts in Brazil are of a sectoral character regulating
specific issues (e.g. consumer protection, telecommunication, Internet), they are
only applicable in the relevant sector. A more general data protection provision,
such as the aforementioned habeas data writ, applies only with regard to access to
personal information before public bodies.
Consumer law can be applied to enforce consumer privacy in the case of any
relationship involving a consumer and a supplier, 29 while the Credit Information
Law applies merely to database-related issues concerning financial data. According
to the CDC, any transaction between a consumer and a supplier, where at least
one major part of the transaction took part in Brazil, falls under its jurisdiction.
Therefore, consumer law applies whenever a product or service was bought or
provided in Brazil. However, enforcement might prove difficult when suppliers
operate beyond Brazilian borders.
With regard to the use of data collected on the Internet, Internet connection
and application providers must comply with Brazilian laws in the following cases:
if collection, storage or treatment of personal data occurs in Brazil, if at least one
of the terminals involved in the communication is located in Brazil, or if the pro-
viders offer services to Brazilians or have, directly or through a company pertain-
ing to their group, an establishment in Brazil. 30 The Brazilian Internet Civil Rights
Framework applies to Internet users in general, Internet connection providers
(which promote the transmission of data packages between terminals over the
Internet) on the assignment or authentication of an IP address, and Internet appli-
cation providers (which provide a set of features that can be accessed by a termi-
nal connected to the Internet). 31 The Act establishes that any treatment of per-
sonal data that is processed in Brazil, even partially and merely collected by means
of a terminal located inside the territory, must comply with Brazilian legislation.
Article 11 reads as follows:
27 <http://www.planalto.gov.br/ccivil_03/_Ato2011-2014/2013/Decreto/D7962.htm> (last ac-

cessed June 26, 2015).
28 See Article 1 of Decree No. 7.962 of 2013.
29 See CDC, Articles 2 and 3.
30 See Law No. 12965 of 2014 (Brazilian Internet Civil Rights Framework), Article 11, paragraph 1.
31 See Law No. 12965 of 2014 (Brazilian Internet Civil Rights Framework), Article 5.
In any operation of collection, storage, retention and treating of personal data or commu-
nications data by connection providers and Internet applications providers where, at least,
one of these acts takes place in the national territory, the Brazilian law must be manda-
torily respected, including in regard the rights to privacy, to protection of personal data,
and to secrecy of private communications and of logs.
§1°. The established in Art. 11 applies to the data collected in the national territory and
to the content of the communications in which at least one of the terminals is placed in
Brazil.
§2°. The established in Art. 11 applies even if the activities are carried out by a legal en-
tity placed abroad, provided that it offers services to the Brazilian public or at least one
member of the same economic group is established in Brazil.
Foreign companies are subjected to this rule whenever they provide services to
Brazilian citizens. This means that even if a company does not particularly focus
and approach Brazilian users, but admits them as customers, the provisions of the
Internet Civil Rights Framework shall apply. The same applies if the company has
a subsidiary in Brazil. In this context, it is worth mentioning that, during the last
decade, Brazilian courts have debated jurisdiction issues related to foreign Internet
companies with small operations in Brazil, but whose services are mainly provided
by their foreign operations. In such cases, Brazilian jurisprudence tended to hold
Brazilian subsidiaries liable for Internet services, even if those services were not
provided by them in a technical sense.
This approach of multiple statutes aimed at regulating personal data can make
it legally more and more complex when the number of new statutes concerning
consumer data protection continues to grow.
IV. Definitions of consumer and data

The CDC uses a broad concept of a consumer, which allows its application in a
variety of cases, even beyond the strict contractual relation between consumer and
trader. The consumer can be either a natural person or a legal entity. The Con-
sumers’ Code contains four definitions of who can be considered a consumer.
Firstly, according to the standard definition, a consumer is any physical person or
corporate entity who acquires or uses a product or service as a final user. 32 Sec-
ondly, a consumer is also a group of persons who participate in consumer rela-
tions. 33 Thirdly, a consumer is anyone who has suffered damages caused by a
32 Article 2. – “Consumer is any individual or body corporate who acquires or uses any product or
service as an end user.”
33 Article 2. Sole Paragraph. – “Any group of persons, even if unidentifiable, whose activities might
intervene in the consumer relations, shall be understood as consumer.”

commercial activity. 34 Fourthly, any person who is exposed to a commercial prac-

tice, such as advertising or databases, is also considered a consumer. 35 In any of
these cases, the CDC applies. Thus, a citizen does not need to prove any contrac-
tual relation to exercise their rights to correction and disclosure of their personal
information, e.g. illegally contained in a database. It also means that consumer
damage claims can be directed not only against the person or enterprise with
which they have a contract, but also against the party responsible for the database.
That is why the data protection norms of the CDC have had a much broader ap-
plication than the strict relation between consumers and traders, promoting a
modernization that extended beyond consumer relations. It is important to ob-
serve that financial institutions must also comply with the CDC. This understand-
ing was confirmed by the Federal Supreme Court in its Informative Acts 452, 430,
425, and 417, and in its ruling of the Unconstitutionality Claim ADI 2.591/DF of
6 July 2006. Therefore, the definition of a consumer under the CDC covers any
individual or legal entity that utilizes, as a final consumer, banking, financial and
credit services.
The CDC does not only define a consumer as the final intended party that
purchases goods or contracts services (Article 2 of the CDC). In regard to the
supplier, product and service, Article 3 of the CDC defines them as follows: The
supplier is any individual or legal entity, public or private, domestic or foreign, as
well as depersonalized entities engaged in the activities of production, assembly,
creation, construction, transformation, import, export, distribution, or commer-
cialization of products or service. The product is any movable or immovable
good, material or immaterial, while the service is considered as any activity sup-
plied in the consumer market, upon remuneration, including banking, financial,
credit, and insurance activities, except those that are supplied under labor agree-
ments.
There is no general legal definition of “personal data” established in a particu-
lar statute in Brazil. However, based on decisions of the Brazilian courts, it is ar-
gued that any data which can be used to identify an individual (for example, the
name, ID and taxpayer number of the individual) should be considered personal
data for the purposes of the Data Privacy Regulations. In general, “personal data”
should be considered to include any particular information related to an individ-
ual, including name, age, sex, profession, or address, as well as any personal com-
munication exchanged without any intent to go public, such as personal e-mails
and messaging.
It is argued that the Constitution makes a distinction between the concepts of
communication and other uses of personal data, as article 5, XII, of the constitu-
34 Article 17. – “For the effects of this Section, all the victims of the event are equivalent to con-
sumers.”
35 Article 29. – “For the purposes of this Chapter and following, every individual, identifiable or not,
that is exposed to the practices provided for herein shall be understood as a consumer.”
tion recognizes the right to the “communications data secrecy,” which only ap-
plies to communication data and not to any data that are occasionally stored.
Therefore, it is argued that the constitution only grants protection to communica-
tions data and not to any data in general. Consequently, any attempt to protect
personal data as a constitutional right presupposes that the personal data in ques-
tion are related to the intimate and private life of an individual.
The only definition of personal data in Brazilian legislation can be found in the
Access to Information Law (Law No. 12.527 of 2011), which refers to any infor-
mation pertaining to the natural person, whether identified or identifiable. 36 This
definition of personal data only relates to the natural person, not to legal entities.
However, in private law, privacy is also considered as one of the so-called rights to
personhood. In this sense, it can also apply to legal entities. Article 52 of the Bra-
zilian Civil Code, for example, mentions that the rights of the personhood apply,
“to the necessary extent,” to legal entities.
In general terms, Brazilian laws do not establish different kinds of personal
data, e.g. by establishing distinctions with regard to legal concepts such as “sensi-
tive data.” The only reference to “sensitive information” can be found in the
Credit Information Law, which forbids the recording of such information. Ac-
cording to its Article 3, “[r]ecord must not be made of [...] sensitive information,
being considered as such those information related to the social and ethnicity
origin of an individual, his health, genetic information, sexual orientation, and
political, religious and philosophical beliefs.” Moreover, professional secrecy laws,
as in the case of ministers and physicians, also protect some of these values.
V. General guiding principles

Despite the lack of a comprehensive data protection law, general data protection
principles can be identified in essentially all specific acts of relevant sector legisla-
tion. The principle of access is probably the one with the most robust formulation
in Brazilian Law, as it is clearly based on the Brazilian Constitution – more pre-
cisely, the Habeas Data writ, as already mentioned. There is no law establishing
general data quality obligations. However, both the CDC and the Credit Informa-
tion Law impose that data must be: objective, clear, truthful, and easily under-
standable (Article 43 of CPC and Article 3, para. 2 of the Consumer Information
Law). In the CDC, some privacy principles are contained in Article 43. 37 Accord-
ing to this, the consumer’s right to access to data is granted. Consumers’ files must
be objective, clear, truthful, easily understood, and cannot contain the same nega-
tive information (regarding unpaid duties) for more than five years. In respect to
36 See Article 4, IV – personal information: information pertaining to the natural person, whether
identified or identifiable.
37 Gambogi Carvalho, O consumidor e o direito à autodeterminação informacional, in: Revista de
Direito do Consumidor, n. 46, abril-junho 2003, pp. 77-119.

this negative information, the consumer must be explicitly informed that such data
was recorded. Moreover, a right to rectification of inaccurate or incomplete data is
granted (Article 43 CPC). Credit information protection is addressed more exten-
sively under the Credit Information Law (Law No. 12.414 of 2011). Finally, Arti-
cle 7 of the Internet Civil Rights Framework contains the rights and guarantees of
Internet users:
- “inviolability of intimacy and private life, safeguarding the right for pro-
tection and compensation for material or moral damages resulting from
their breach;
- inviolability and secrecy of the flow of user’s communications through
the Internet, except by court order, as provided by law;
- inviolability and secrecy of user’s stored private communications, except
upon a court order;
- non-suspension of the Internet connection, except if due to a debt result-
ing directly from its use;
- maintenance of the quality of Internet connection contracted before the
provider;
- clear and full information entailed in the agreements of services, setting
forth the details concerning the protection to connection records and re-
cords of access to Internet applications, as well as on traffic management
practices that may affect the quality of the service provided;
- non-disclosure to third parties of users’ personal data, including connec-
tion records and records of access to Internet applications, unless with
express, free and informed consent or in accordance with the cases pro-
vided by law;
- clear and complete information on the collection, use, storage, processing
and protection of users’ personal data, which may only be used if it:
a) justifies its collection;
b) is not prohibited by law; and
c) is specified in the agreements of services or in the terms of use of the
Internet application.
- the expressed consent for the collection, use, storage and processing of
personal data, which shall be specified in a separate contractual clause;
- the definitive elimination of the personal data provided to a certain
Internet application, at the request of the users, at the end of the relation-
ship between the parties, except in the cases of mandatory log retention,
as set forth in this Law;
- the publicity and clarity of any terms of use of the Internet connection
providers and Internet applications providers;
Another random document with
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separated from their homes, in prisons, insanity oftener occurs than
among the same people at home. Severe grief, disappointment,
great and sudden joy or success, chagrin, fear, religious or political
excitement, wars, pestilences, domestic or business troubles,
poverty, and misfortune are among the commonly-reported moral
causes of insanity, as are certain occupations involving steady and
monotonous toil, especially if involving mental worry or necessitating
unhappy relations.
Of the physical exciting causes of insanity, intemperance in the use

of alcohol is easily first: luxury and excess in eating, drinking, and
sexual indulgence, especially if associated with overwork or physical
inactivity and mental anxiety, are also dangerous. It is difficult to
estimate the influence of syphilis except when giving rise to coarse
disease of the brain. Masturbation acts as an exciting cause, chiefly
by creating a morbid psychical state and by exalting the sensibility of
the nervous system, but probably not often, even with the young.
Injuries to the brain and nervous system are usually slow in their
operation, unlike the severe mental shock which is at once followed
by insanity. Pain also, if intense, like great loss of blood, acts slowly
by wearing out the powers of resistance, or rapidly by producing
delirium.
A relation between pulmonary consumption and mental disease is

frequently observed—partly, perhaps, due to general anæmia, in part
to circulation of diseased blood in the brain, and partly from
tubercular deposits. Other diseases act directly upon the brain and
nervous system, as leptomeningitis, pachymeningitis, sclerosis,
capillary aneurisms, embolisms, cerebral hemorrhage, tumors,
disease of arteries, syphilis, caries, exostosis, abscess, internal
otitis, sunstroke; still others by disturbances in the cerebral
circulation, as diseases of the heart and kidneys; others by vitiating
the blood circulating in the brain, as in the acute stage of febrile
disorders; others in some general unknown way, as chorea, hysteria,
epilepsy, gout, rheumatism, malaria, pneumonia; and still others
during the period of convalescence or of general exhaustion, which
is often associated with infectious diseases or chronic disease
attended with general anæmia. The more violent and curable
psychoses occur at the height of acute diseases, those of longer
duration and of less favorable result during convalescence. Among
other recognized causes are prolonged and obstinate dyspepsia, the
psychological changes, if morbidly developed or attended with
accident, at puberty, during pregnancy, at childbirth, during the
puerperal state or lactation, and at the climacterium, and rarely
various affections of the abdominal and pelvic organs.
Chronic alcoholism produces disease of the small blood-vessels of

the brain and the consequences of that condition, causing insanity in
a considerable proportion of cases, and almost always some mental
impairment. Insanity occurs under conditions of cerebral hyperæmia
and of cerebral anæmia, although their relation as cause and effect
is very obscure. The habitual use of hasheesh gives rise to a
disagreeable form of dementia, and so does opium, but more rarely.
The effects of poisoning from iodoform, lead, mercury, bromide of
potassium, hydrate of chloral, belladonna, tobacco, when reported
as producing insanity, are usually transitory.
Cases have been reported of two persons being exposed to the

same causes and having similar attacks of insanity (folie à deux),
and also of folie induite or folie communiquée, where several
persons have adopted the delusions of a person of influence among
them, one of the most remarkable instances of which was the case
of the seventeen grammar-school-taught Adventists of Pocasset,
who accepted the insane belief of their leader, Freeman, that, like
Abraham, he had been commanded by the Lord to kill his child, that
she was to rise on the third day after he had killed her, and that he
was to become a great evangelist. So-called epidemic insanity,
choreomania, and demonopathy belong in this class.
From untrained, ill-balanced men and women, whose lives are ill
regulated, the ranks of the insane are largely filled. Insanity is often
the ultimate wreck of a life ill guided, directed chiefly by caprice and
passion and weakened by indulgence. In that case it is, like much
habitual drunkenness, as much a fault as a disease. The individual
will not behave with decency and propriety for so long a time that,
finally, especially after the age when the brain begins to fail, he
cannot.
SYMPTOMATOLOGY AND COURSE.—The distinguishing symptoms of

insanity are mental. In some forms of insanity they are mental only;
in others these symptoms are associated with others, such as also
occur in diseases not necessarily affecting the mind. The earliest
mental symptoms are change of character, increased irritability, less
feeling of accountability, a lower moral tone, moral perversion,
diminished stability, loss of interest, lessened power of concentration
and self-control, impulsive acts, anxiety or the opposite condition of
mind, perverted or exaggerated force of the emotions, restlessness,
apprehension, sleeplessness, impaired will, slight depression or
barely noticeable exhilaration: things and persons seem changed in
some vague, unexplained way. There is an alteration in the way in
which the person is affected by his surroundings.
The next symptoms are more purely intellectual. Delusions are often
at first based upon some fact, and are merged into insane delusions
only as the mind, in becoming weakened, loses power of comparison
and judgment. Often they arise out of the disordered condition of
mind. Hallucinations of any of the special senses, illusions, perverted
ideas, mental confusion, mental hyperæsthesia or anæsthesia,
delirium, stupor, exaltation, depression, impairment or loss of
memory, quickened or dulled conception and perception, increased
or diminished intellectual activity and acumen, distorted association
of ideas, imperative conceptions, all sorts of anomalies of
consciousness and free will, uncontrollable and uncontrolled insane
impulses, are common. The intellectual and moral symptoms appear
nearly or quite together in very acute disease, and they together
increase in intensity, and finally entirely control the individual. Many
of the insane recognize the fact of their insanity. Some of them
understand the nature of their disease quite well, discuss their cases
intelligently, and frequently ask why they, automaton-like, are
impelled by a force which they cannot resist to constantly do things
which their intelligence and better nature condemn. Not a few are
confined in places of safety by their own preference.
The physical symptoms of insanity are perverted sensations of

almost every conceivable kind, resulting in depraved instincts and
acts, psycho-motor excitability, convulsive action, choreic
movements, uncontrollable muscular agitation (springing, shouting,
swearing, dancing, running, destructive tendencies, etc.), elevation
or depression of pulse, respiration, or temperature, loss of appetite,
digestive disturbances, pain, fever, tetanic and cataleptic rigidity,
paralysis, tremor, ataxia, epileptic seizures, convulsions, muscular
contractions, increased or decreased secretions and excretions,
disturbances of general nutrition.
The course of the various mental diseases is to a great extent

chronic, some forms being incurable from the beginning, others
curable to such an extent that of recent cases from one-half to nine-
tenths recover, of whom a considerable proportion remain well to
their death. The duration of the mental diseases is from a few days
to a lifetime, sometimes not even shortening life. The termination is
oftenest in incurable chronicity or dementia, less often in permanent
recovery without recurrence, and still less often in death from the first
attack. Unfortunately, the essentially incurable and the curable forms
of mental disease are classed together in statistics of insanity. While
many types are absolutely fatal or certain to end in hopeless
chronicity or dementia, others tend to recovery. In some forms
relapses and recurrent attacks are to be expected: in others they
seldom occur. In many cases there is no more probability of
transmission to children than in Bright's disease, and no more
likelihood of subsequent attacks than in typhoid fever.
MORBID ANATOMY AND PATHOLOGY.—It is thought by the best observers

that insanity depends upon a functional brain disturbance, or at least
upon a disordered condition which it is beyond our present power to
discover, and that the normal working of the mind depends upon a
brain healthy to such an extent that its millions of functional activities,
in their endless relations to each other, preserve a state of
equilibrium; or, in other words, that the higher centres maintain their
power of control over the lower. It is doubtless true that this relation
depends in general upon a healthy brain, but it is not yet known to
what extent. Disease of the brain or its membranes, apparently
slight, often seems to cause insanity, and often there is marked
disease without insanity. We certainly cannot place all the
pathological conditions found in the brain of a person dying insane in
direct causal relation to his insanity. The anæmia observed by
Meynert in melancholia and the hyperæmia of maniacal excitement,
even if proved to be universal in those conditions, may be only
symptoms of the underlying disease or caused by it. It is certain that
there are indications of as great anæmia or hyperæmia in other
states without insanity.
Insanity in its initial stage does not, as a rule, involve a recognizable

deviation from the normal structure of the brain, and the patient may
die before such pathological changes are so manifest that we can
detect them. But if the disease has been of long standing, in the
majority of cases the brain shows evident marks of disease, and
there may be found no striking indication to the naked eye of
deviation from a healthy condition, when a microscopic examination
reveals signs of advanced cerebral disease. The limited knowledge
of the cerebral structure and function which pathologists possess,
and the consequent difficulty in detecting changes from the healthy
state, indicate that the failure to find them is attributable in not a few
instances to the fault of the investigator rather than to the nature of
the disease. Certain it is that the better acquainted we have become
with the anatomy of the brain and with its functions and sensible
qualities, and the more thorough and painstaking we have been in
our examinations, the rarer it has become to find a case of insanity
where no organic changes are observed after death, although it is
true that we do not understand all the relations between these
changes and the symptoms observed during life.
A large abscess of the brain, a hemorrhage, a tumor, or a wound of

the cortex or other portion of the brain, various degrees of
inflammation, meningitis, are sometimes followed by insanity and
sometimes not; and we do not yet understand the reason for the
difference. Indeed, nearly every pathological condition of the brain
known in insanity—in kind, if not in extent and degree—may be
found in diseased or injured brains where there has been no mental
disease in consequence. There is only one disease, general
paralysis of the insane, in which the morbid appearances
discoverable after death with our present knowledge bear a definite
relation to the most constant manifestations during life. And yet, with
pathological changes so similar that we are not able to detect their
essential difference, the mental symptoms of the first stage of
general paralysis may be most various. Rosenbach has found in the
brains of starved dogs and guinea-pigs as extensive changes as in
well-marked primary dementia, in which the pathological conditions
are more extensive than in any other form of acute insanity.7 That is
to say, when we have discovered and described all the morbid
appearances in the brain of an insane person we have taken only
the first step in accounting for his insanity.
7 Centralblatt für Nevr. Psych. und ger. Med., 1884, p. 33.
The localization of many of the cerebral functions, the discovery of a

psychomotor tract, and the constant accessions to our knowledge of
the physiology of the brain are throwing much light on the subject.
But all efforts to localize the intellectual and moral functions of the
brain, except generally to agree with the teachings of a century ago
and to place them for the most part in the anterior and antero-lateral
portions of the cortex, have thus far failed of success, the most
careful observers still thinking that local lesions when apparently
causing insanity do so by injuring the action of the brain as a whole,
and not of any particular part.
In some cases of insanity, with never anything like acute disease,

where death occurs from the weakness of old age or some
intercurrent malady, the brain does not present any recognizable
difference from those of sane people whose brains have worn out
with their bodies. In those forms of mental disease where changes
are found, the most important and constant are in the cortex of the
brain, especially in the fore, upper, and middle parts of the periphery,
involving usually also the membranes. In beginning acute mania the
condition of the blood affecting the brain or the pathological changes
are probably as nearly identical with those in the acute stage of
pneumonia, certain forms of typhoid fever, cerebro-spinal meningitis,
and other diseases as the symptoms of the mania are now and then
difficult to differentiate from those of the other diseases just
mentioned. In rheumatism, syphilis, malarial poisoning, and Bright's
disease with mania we find no distinctive pathological conditions to
account for the maniacal symptoms.
If asked whether there is a fixed lesion of the brain or any of its parts
corresponding to given psychological changes, we should be obliged
to say no, except in the case of incurable dementia. If asked whether
there are important morbid changes corresponding with all cases of
insanity, we can only say yes, sooner or later, in the majority of
cases, and that there are certain destructive lesions, chiefly
inflammatory, atrophic, and degenerative, which invariably mean
marked deterioration of the mind. As regards diseases of other
organs than the brain, the insane, like the sane, die of all of them,
and in especially large numbers of pulmonary consumption.
Insanity may, both in its acute and chronic form, be the result or
symptom of simple anomalous excitation or nutrition of the brain or
of inhibition of some of its portions, without any change in its gross
appearance which can be detected by our present methods of
research. In the majority of cases there are found diseased
conditions which become more manifest the longer the duration of
the disease, appearing for the most part in the blood-vessels, pia
mater, and cortex of the brain, but also in the medullary portion,
many of which are recognized only in their late stages. In the
functional mental diseases there is no characteristic lesion of the
brain as yet recognizable, even in the latest stages, more than is to
be found in the brains of persons dying from other causes. When
apparently local injuries or diseases cause insanity, they probably do
so through a general disturbance of the brain or through diffuse
disease resulting therefrom and for the most part affecting both
hemispheres. The molecular, chemical, anatomical, physiological,
pathological, or physical changes in the brain which give rise to
insanity, and their relation to the grosser pathological conditions of
the brain, are still not clearly made out.
In terminal dementia, especially in the last stage of paralytic

dementia, nearly every tissue and organ of the body may be found to
have undergone pathological changes, of which by far the greater
portion is secondary to disease of the brain; and it is impossible to
say how much of the brain lesions in these and other conditions of
mental unsoundness is secondary to the disease or an accidental
complication.
DIAGNOSIS.—In the diagnosis of insanity the physician assumes a

responsibility for which he is liable under the common law. It is
important, therefore, to avoid mistakes as far as possible. In the
majority of cases the patient's unsoundness of mind is evident
before he is brought to the doctor, but in not a few the symptoms are
obscure, and they are often rendered more difficult of correct
understanding and appreciation by the deception or reticence of the
patient and by the prejudices of his friends.
First, before seeing the patient it is well to get from his family,
friends, and physician a full knowledge of his natural state, all the
facts known to them relating to strange behavior, delusions, etc., as
they give most useful hints with regard to the method of examination.
Apparent familiarity with an insane person's delusions will often
secure their immediate acknowledgment. In a case of any obscurity
or where there is doubt that other causes than insanity may have
produced the unusual behavior, and particularly if any legal steps are
to be taken regarding guardianship, restriction of liberty, commitment
to an asylum, validity of wills and contracts, capacity to manage
property, marriage, etc., it is imperative that both sides of the
question be fully heard before any positive opinion is given. After the
patient's confidence has been gained in general conversation, during
which his appearance, manner, and mental condition as to
intelligence, coherence, memory, judgment, perception, and capacity
may be noted and compared with his normal standard, he should be
examined carefully for any external evidence of lack of development
or of injuries to the head. As in all other diseases, the condition of
every organ of the body should be noted; a complete diagnosis
should be made. The expression of the face often indicates such
excessive excitement, gloom, stupor, suspicion, or fear as must be
due to insanity alone.
Throughout the examination the questions and manner of the

physician should be such as to avoid suggesting unpleasant ideas or
associations to the patient. The matter of suicide should never be
first mentioned by the questioner, and not seldom he does best who
listens most and lets his patient disclose his morbid ideas and
impulses, as he will frequently be led to do, if at all, by the
manifestation of interest and sympathy, and of knowledge of the
symptoms of the disease in hand, on the part of the physician. He
often gets enough for his purpose without getting the whole story,
upon which it sometimes does harm, or at least is not best, that the
patient should dwell. In the diagnosis of mental disease, however, as
well as in estimating responsibility, the fact must be borne in mind
that a controlling delusion may be concealed for months or even
years, and that the symptoms and mental condition of insane people
vary so much at different times that it may be quite possible to get
distinct evidence of unsoundness of mind at one time and not at
another. The power of self-control is also liable to the same variation
or alternation.
If the patient has no reason for simulation, it is commonly best to tell

him the object of the examination. The family history should be
learned from others, as questioning the patient on these points is apt
to put him in a train of thought unfavorable to a hopeful view of his
own case. After full personal questions concerning himself and his
environment, one can usually tell whether there are unreasonable
suspicions, violent impulses, perverted feelings with regard to his
family, delusions, hallucinations, or illusions. A delusion's existence
must often be accepted, however, from the behavior of the patient
and from the statements of those about him. Hallucinations of
hearing must sometimes be inferred from the attitude of listening to
imagined voices; and prolonged observation under circumstances
such that the patient does not know that he is watched will often
settle the question of his insanity when other means have failed. A
careful examination should, of course, be always made for the
physical and rational signs of disease. In the differential diagnosis
care must be used not to mistake for insanity the acute diseases
typhoid fever, meningitis, smallpox before the period of eruption,
pneumonia, cerebro-spinal meningitis, narcotism or delirium from
drugs, and alcoholism—errors which have been made, and which
can be avoided by deferring one's opinion for a sufficient time.
The detection of simulation is more difficult, especially as the insane

sometimes feign insanity for a purpose, or, on the other hand,
accuse themselves of wrong acts which they never committed. In
general, it may be said that sane persons pretending to be insane
very much overdo their part, do not make their symptoms conform to
any recognized type of disease, and have a strong motive for their
deception, as well as for the act for which they wish to be considered
irresponsible. Their insanity first appears after the deed; they are
exhausted by their efforts to seem mad, and appear quite sane if
watched when they think that they are unobserved. A crime
performed without accomplices, with no plan or a silly one for
escape, and with no sane motive, is usually itself evidence of
insanity. On the other hand, people partly demented by chronic
insanity often commit crimes with all the method and motive of the
criminal. In not a few cases, especially when the fact or not of
impaired intellect cannot be decided by comparison with a previous
condition, the question of insanity, or at least of responsibility, will be
beyond human wisdom. A correct diagnosis can, of course, not be
made without a familiarity with the various forms of mental disease;
and insanity is now so well understood that a sufficient examination
of an insane person should develop the clinical history of some
known type of disease in nearly every case.
Little has been said of the physical evidences of insanity, because

there is little to say. Conditions of mental torpor, depression, and
excitement are associated with the physical manifestations which we
would naturally expect in those mental states. Coarse brain disease
with insanity or without may have identical physical signs; paralytic
dementia is the only disease in which corporeal indications really
assist in forming a diagnosis.
A family predisposition to mental disease does not materially affect

the question of fact whether a given individual is insane or not,
except that in a doubtful case it adds to the probability of insanity,
and is thus far a factor of importance as corroborating other
evidences of an unsound mind.
PROGNOSIS.—The prognosis in insanity depends first upon the type of

disease, mania, melancholia, and some forms attended with
confusion and stupor being the most curable; the forms attended
with systematized delusions or with periodicity which is not
dependent upon menstruation, folie circulaire, and moral insanity
rarely so, and the organic brain diseases, congenital insanity, and
confirmed primary delusional insanity (monomania) hopeless. The
acute forms are far more curable than those of a subacute type: 60
per cent. of the cures in insanity occur in the first half year of
treatment, 25 per cent. in the second half, and 2.5 per cent. in the
second year, roughly speaking. In chronic cases a reported cure is
most commonly only a remission, and after several years of
existence insanity is generally incurable, although rare cases of cure
in mania have been reported after even from six to fourteen years of
treatment, and in melancholia after twelve years. So long as there is
no permanent dementia and there are distinct intervals of mental
clearness, no matter how short or how far apart, there is hope of final
recovery in the curable mental diseases.
People of sound families, with insanity of an acute type arising from

physical causes, often make such speedy and complete recovery as
to justify their subsequent marrying if they wish, while those of
unstable nervous organization recover more slowly and oftener
relapse. Insanity from so-called moral causes, too, is of more
unfavorable outlook than if from the physical causes, if we exclude
organic brain disease. A person with good physical education,
excellent mental training, and self-control is more likely to get well
than one with a vicious bringing up. The ages of maturity and middle
years are most favorable to complete recovery. In women there are
more first cures and more relapses, according to Krafft-Ebing. In
general, the mortality of the insane in asylums is about four times
that of the sane of all ages, or approximately six times that of the
sane at the ages when insanity prevails.
Prolonged stupor, profound incoherence, loss of memory, and moral

debasement are unfavorable symptoms, unless quite acute, of short
duration, or occurring after the rapid subsidence of acute symptoms.
Hallucinations of hearing, and to a less extent of sight, impulses to
violence, and especially systematized delusions, are grave
indications. Paralysis, epilepsy, and convulsions usually mean
chronicity or death. Extensive disease of the heart, kidneys, or lungs,
confirmed dyspepsia, especially of alcoholic origin, and a previous
history of syphilis, seriously affect the prospects of recovery. If there
is actual cause for self-accusation, if the knowledge of wrong-doing
is added to the morbid mental state, the period of convalescence is
apt to be much retarded, or even recovery is prevented, by the
difficulty of establishing a healthy reaction. Even an irresponsible act
is often magnified into so depressing an influence as to prevent
restoration to health, as in the case of those who have injured or
killed members of their family.
Of 9689 persons admitted into the Worcester Insane Asylum8 during

fifty years ending September, 1881, of whom 1083 had been in other
asylums, 35.49 per cent. were discharged well, 26.61 per cent.
improved, 17.71 per cent. not improved, 0.5 per cent. not insane,
and 14.85 per cent. died. Of those discharged, 25.41 per cent. were
readmitted, and of 798 discharged recovered, with regard to whom
inquiries were made, 156 were reported well at the time of replying,
197 as having died sane, 30 committed suicide, 162 relapsed and
died, 94 relapsed and were alive, 30 were in hospitals or
almshouses insane, and of 129 no information was got. Out of 798,
there were 316, or 39.6 per cent., known to have become insane
again or to have committed suicide. Of 1966 second admissions,
668 recovered; of 607 third, 263; of 261 fourth, 119; of 132 fifth, 70;
of 70 sixth, 42; of 48 seventh, 30; of 37 eighth, 21; of 30 ninth, 19; of
26 tenth, 15; of 23 eleventh, 11; of 18 twelfth, 11; of 15 thirteenth, 10;
of 12 fourteenth, 8; of 8 fifteenth, 5; of 4 sixteenth and seventeenth,
3; of 4 eighteenth, 2; of 2 nineteenth, 1, who was admitted and
discharged well twenty-three times.
8 Forty-ninth Annual Report, including tables by John G. Park, Medical
Superintendent.
Thurnam's statistics, that one-half of the recent cases of insanity

treated in asylums recover, and that of the recovered only two-fifths
remain so, receive constant confirmation. There is a considerable
proportion of the inmates of asylums whose brain-condition is so
unstable that they come in and go out frequently. Their brains are
unstable, too, in the little affairs of life, and many of the nominally
cured remain comfortable only by being shielded from sources of
physical wear and mental worry. It is impossible to get statistics of
the curability of mental diseases properly treated outside of asylums,
but the results would probably be more favorable than those just
quoted, partly from the greater chances of cure in the mild cases and
in those acute cases which can be kept at home, or at least do not
require hospital treatment.
It is difficult to form an opinion as to the probability of subsequent

attacks in those who have recovered from any of the curable forms
of mental disease. The same constitution, of course, remains as that
which predisposed the individual to the first attack, and no one can
look far enough into the future to predict the influences which will be
brought to bear upon any given person for a considerable period of
time. If they are favorable for preserving mental health, the chances
of escaping mental disorder in the future are very much greater than
if the occupation which must be pursued and the life which must be
led predispose to bodily exhaustion, anxiety, and brain-worry. If the
disease first appeared under slight exciting causes, it will not often
be possible to avoid similar conditions again, and some forms of
insanity are characterized by relapses and recurrent attacks.
Of the persons reported recovered from mental disease, a large

proportion fail to recover in the sense of being fully themselves
again. There is left some change of character, no matter how slight,
some moral perversion, irritability, instability, impaired will, lessened
power of self-control, diminished mental capacity—some lowering of
the intellectual or moral standard, some deterioration of some kind.
TREATMENT.—Not long after Leuret recommended and practised

severe discipline in the treatment of the insane a case was reported
at the Medical Congress in Naples (1845) where douches, setons,
blisters, bleedings, internal medication, shocks, terror, harsh
discipline—nothing succeeded in restoring to sanity a woman
become insane three months after her confinement. There probably
are places where similar methods are practised at the present day,
and yet it is not unreasonable to suppose that the very treatment
used is sufficient to render incurable patients who might otherwise
get well. The modern management of mental disease by rest, diet,
baths, fresh air, occupation, diversion, change of scene, no more
medicine than is absolutely necessary, and the least restraint
possible—in a word, improving the patient's general condition,
meeting the indications of his disease, diverting his mind from its
morbid thoughts, or putting the brain in a splint, so to speak, as each
case demands—gives much better results, the value of which is
much diminished by the enormous increase in the size of our
asylums and the great aggregation in them of diseased persons in all
stages of insanity.
In twenty American asylums, the statistics of which have been

analyzed by Pliny Earle in his paper on the Curability of Insanity, the
average diminution of reported recoveries for about twenty-five years
has been from 46.08 to 34.26 per cent. annually of cases admitted,
and in the Massachusetts State asylums from 25.95 to 22.25 per
cent. of 3371 persons admitted from October, 1879, to October,
1882. The prospect of treatment of insanity does not, from these
figures, look very hopeful, and it must be conceded that there is in
the proportionate number of reported recoveries a decrease which it
is important should be explained. It is undoubtedly true that a larger
number of the chronic and quiet incurable insane are sent to the
asylums now than formerly, thereby diminishing the curable
proportion. The character of the asylums, too, has changed from
being small, easily-managed institutions to overgrown affairs,
crowded with so many incurables that the duties of the
superintendents have become largely administrative, and the
medical treatment of the sick has been driven to a subordinate
position. Medical officers, too, are more cautious in using the word
cured after experience has shown them how many reported cures
are only remissions.
In treating insanity, even more than any other disease, the fact must
be borne in mind that one is treating a diseased person; and indeed
it is often necessary to treat a whole family of persons predisposed
to insanity in giving directions for one actually insane. There
probably has been no time during the last quarter of a century when
there was more uncertainty in the minds of the medical profession
regarding the best treatment for patients suffering from curable
mental diseases than at present. Twenty-five years ago the almost
universally-accepted practice was to send them to an insane asylum
with as little delay as possible, without much regard to the character
and duration of their disease. Twenty years ago, in the medical
school the professor of obstetrics advised sending all well-marked
cases of puerperal insanity early to the hospitals for the insane, and
only a few years later Godding, then superintendent of the asylum at
Taunton, advised that patients with puerperal insanity be kept at
home until every available resource but the asylum had been tried
without success.9 Meynert lectures to his classes in Vienna that in
every case there is a disadvantage in sending curable insane
persons to asylums, although it is often a necessity to do so.
Maudsley thinks that a large proportion of the curable insane can be
treated to best advantage either at home or in small private asylums
or houses; while Bucknill says that by home treatment more cases
would be cured than with our present methods. The late Isaac Ray
summed up his vast experience in the treatment of the insane by
saying that it cannot be shown that the introduction of insane
asylums has added anything to the curability of insanity, much as
they are to be praised from the humanitarian point of view. According
to the statistics of Pliny Earle—to which the only objection we can
make is that they are so exhaustive and conclusive that we cannot
controvert them—the permanent curability of mental diseases in
asylums for the insane is not only small, but decreasing.
9 Boston Medical and Surgical Journal, vol. xci. p. 317.
Part of the results obtained by Earle may be due to the fact that
curable cases are more treated at home now than formerly, that the
degenerative types of insanity are more common, and that in our
cleaning up and civilizing processes we are not only driving out filth
diseases, but letting in disorders due to greater efforts and more
intense struggles for the kind of existence which modern life
demands. But it is also true that in enlarging our asylums, as we
have been compelled to do, we have lost something in personal care
of patients, and that we have increased the depressing influences of
large masses of sick people to such an extent as to involve serious
disadvantages in their treatment. It is a matter of common
observation that some insane people do well at home, others away
from home, and others in asylums—that some do badly in asylums,
and quickly get well if discharged, and that others, after continually
going down at home, immediately improve upon being sent to an
asylum. There seems, however, to be no fixed rule in individuals,
and certainly there is very far from unanimity of opinion among
alienists generally as to the conditions for home treatment or
removal from home or sequestration in asylums, except, of course,
that few men of experience would take the responsibility of keeping
out of asylums persons with alcoholic insanity or with delusions of
persecution, or cases of violence and delirium, or any insane
patients under conditions involving danger to the community or to
individuals, although it is often a matter of extreme difficulty to decide
when restraint becomes necessary or justifiable.
I have selected from a large number a few cases where I have acted
contrary to the usually accepted views as to indications for removal
from home, and with such success that I am led more and more
each year to rather widen than narrow the lines within which home
treatment seems to me desirable.
Case I.—Mr. ——, age 20, of sound constitution and without marked
hereditary tendency to disease, although several members of his
family are people of very little force. The patient had masturbated in
college, as many boys do, and was compelled to give up his studies
upon his father's failure in business. An attack of slowly-advancing
melancholia developed, for which he was sent to the farm of a
relative in the South without improvement, so that he returned home
at the end of a year in pronounced acute melancholia. He secreted
himself in a marsh not far from home, where he was by accident
found bleeding freely from the radial artery, which he had cut to kill
himself. He had the usual delusions of the disease. He thought the
world was all wrong, that he had committed great crimes—the
unpardonable sin—and that there was nothing but destruction before
him and his family. He was desperately suicidal. The circumstances
giving rise to his disease and the associations of his delusions were
entirely connected with his home and members of his family. His
people could not afford to hire a nurse, but his three brothers and
one cousin were only partly employed, and they agreed to take care
of him. The treatment was tonic and supporting, with plenty of sleep,
food and outdoor exercise, with careful attention to daily details of
life, arranging it as to amusements, occupation, etc. etc. from day to
day to suit his condition, and with absolute watchfulness day and
night to prevent suicide. He remained in the home where his disease
arose, and he was taken care of by the people most actively
associated with his delusions. He made a rapid and perfect recovery,
and is now very successful in his work as a professional man.
Case II.—Miss ——, age 35, a sound, healthy woman, without any
known hereditary predisposition to disease. Without any assignable
cause, except a moderate amount of overwork and steady home-life
without sufficient recreation, she became very ill with acute
melancholia, much mental confusion, very varied delusions that the
world was all wrong, her friends distorted and changed, and herself
so great a sinner that she could not escape everlasting damnation.
Her most constant and distressing delusion was that people were
constantly lying in wait to kill her and her mother and her sisters.
When I saw her she was taking large quantities of hydrate of chloral
and bromide of potassium, which were at once stopped. With plenty
of food, fresh air, exercise, rest, malt, and cod-liver oil she slept well.
She was first put under the care of a professional nurse, who was
not liked by the family, and I then decided to let the mother and
sisters assume full charge. She was watched with unremitting care
day and night, and yet managed to make three attempts at suicide,
which of course were not successful. She made a rapid and most
perfect recovery, and is still perfectly well.
Case III.—A letter-carrier about 25 years old, without known

hereditary tendency to disease, under-fed, over-tired, and worried,
broke down with pronounced mania of the simple type, without
marked delirium or delusions. He was much exhilarated, often
excited, rarely noisy, and, as he had no delusions, he was not
dangerous. He was somewhat troublesome, and I feared that his
disease might become more active, and so I recommended his
removal to an asylum, to which his friends fortunately refused to
consent. He became progressively worse, but still not maniacal or
delirious. He had no specific insane delusions, but he had a
generally exalted notion about all the events of life and his own
affairs. His surroundings were not conducive to quiet, as he lived in
the noisy part of the city, and his associations were those under the
influence of which his disease appeared. But he made a most
excellent recovery, and resumed his work with only a year's
interruption.
Case IV.—A healthy young woman, without hereditary predisposition

to insanity, confined with her first child. Her delivery was not
attended with any especial difficulty, and she made rapid progress
toward health and strength until the beginning of the third week,
when a slight change of character was noticed which soon
developed into active mania. She was delirious, profane, obscene,
filthy in her habits, and filled with delusions regarding herself, her
family, and her surroundings. She had a great aversion to her infant,
and often did not know the several members of her household. Hers
was as violent a case of puerperal mania as I have ever seen in an
insane asylum. She was naturally not very strong, however, and
people could always be near enough at hand to prevent her doing
any harm to herself or others. Her infant was kept out of her sight
most of the time for five months, and all of the time for many weeks.
The usual treatment was adopted, an excellent recovery was made
in six months, at the end of a year strength was restored, and the
patient remains quite well now.
Case V. was quite similar to the last, except that the disease was
melancholia, and that the patient had tried to kill herself and her
infant before I saw her. She made a complete recovery. Both cases
were taken care of in their own homes, and for the most part by
members of their own families.
I have reported these cases with as little detail as possible to

illustrate the point which I have insisted upon for several years, that
many cases at least of mental disease are to be treated precisely
like typhoid fever or rheumatism or a broken leg, so far as removal
from home is concerned, and that home-associations are no more
harmful in properly-selected cases than in pneumonia or phthisis. I
do not mean, however, that the patient should not be under the most
careful treatment. On the contrary, the little details of medical care
are fully as important as in early Pott's disease or beginning
inflammation of the hip-joint. But it is often difficult to decide what
cases should be best treated at home, what by slow travel or
removal to other places than home, and what in asylums.
The objections to asylum treatment, when it is not absolutely

necessary, are very great. On the other hand, the advantages that
asylums possess for supervision and control are so obvious that they
must continue by far the best means of treating the vast majority of
cases of incurable insanity, and a large proportion of those in which
a cure may be reasonably expected. The exigencies of many cases
demand them. If, however, it can be shown that the aggregation of
invalids in them is unfavorable to the best chances of recovery, and
if, as I think is the case, many of the restraints and restrictions now
common in them are unnecessary—for many of the patients, to say
the least—the deduction is clear that a change must be made in
asylum construction and management to correspond to these views.
A common depressing influence in the treatment of mental disease
is the fact that the patient remembers some member of the family
who has had to go to an insane asylum, and fears the same fate for
himself, or after one commitment and recovery fears that he may
have a relapse and be obliged to enter an asylum again. I am quite
sure that a considerable number of the recovered patients of insane
asylums who commit suicide do so from this dread; which is not
altogether unnatural, as the tendency there is downward, so that the
patient, as he in the progress of his disease more and more loses
self-control and power of decent behavior, is progressively dropped
into lower wards, with more disorderly or demented patients, at a
time when all the surrounding influences should be, on the contrary,
of a tendency to lift up. On the other hand, many who recognize their
infirmity wish to be taken away from old friends and associations,
and prefer the seclusion of an asylum, which is their best home.
The more acute the disease, the more likely it is to be of not long
duration, and, as a rule, the easier it is to treat it without removal
from home, except in cases of great violence. The question whether
home-influences are benefiting or injuring an individual patient must
often be settled by experiment. It is a great comfort to many of the
insane to see their friends, no matter how seldom, at times when
they feel that they need their support and influence; and this is
impossible unless the friends are near at hand. There are cases in
which familiar scenes and faces and voices reassure the patient
when delirium subsides, and during a short interval of comparative
mental clearness their sedative influence is great as compared with
the confusion and worry of trying to understand the new
surroundings of a hospital ward or the sight of strange people and
the sound of unknown voices. The mere fact of delusions being

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Consumer Data Protection In Brazil

China And Germany A Comparative

Protection of Health and Safety at the Workplace A

Personal Data in Competition Consumer Protection and

The Political Economy of De-liberalization: A

The International Comparative Legal Guide To Data

Data Protection on the Move Current Developments in ICT

International And Comparative Legal Study On Big Data

Social Welfare in India and China: A Comparative

Regulating Human Embryonic Stem Cell in China A

Consumer Data Protection in Brazil, China and Germany

ISBN: 978-3-86395-236-5 Universitätsverlag Göttingen Göttingen University Press

This work is licensed under a Creative Commons Attribution-ShareAlike 4.0

Board of Editors: Rainer Metz, Jörg Binding,

Göttingen University Press

This work is protected by German Intellectual Property Right Law.

Set and layout: Franziska Pannach

© 2016 Göttingen University Press

Chapter 1: Study Structure ........................................................................................... 7

Chapter 2: Country Studies on Consumer Data Protection

6. Specific acts for e-commerce ........................................................ 18

IX. Data security ................................................................................................ 102

Chapter 3: Law in Practice: Current Issues, Challenges and Case-Law

A. Current Judicial and Administrative Issues of Consumer Data

VI. Unsolicited e-mails ...................................................................................... 189

Chapter 4: Comparative Thematic Issues of Consumer Data Protection . 203

Chapter 1: Study Structure

data through an international cooperation involving developed and developing

step was the appointment of the organization CI in 2014. Consumers Interna-

C. General Overview of the Study

Chapter 2: Country Studies

A. Consumer Data Protection in Brazil

A. Consumer Data Protection in Brazil

2 See Brazilian Institute for Geography and Statistics,

II. Overview and scope of legislation addressing consumer data protection

3 <http://www.factfish.com/statistic-country/brazil/mobile+cellular+subscriptions> (last accessed

pdf> (last accessed June 26, 2015).

<http://www.wipo.int/wipolex/en/details.jsp?id=9615> (last accessed June 26, 2015).

<http://www.procon.sp.gov.br/texto.asp?id=745> (last accessed August 7, 2015).

also called the Internet Act), <http://www.planalto.gov.br/ccivil_03/_ato2011-

edge of information related to the person of the petitioner.”

Gutwirth/Leenes/De Hart (Eds.), Reloading Data Protection. Multidisciplinary Insights and

2. General legal framework for consumer data protection

6. Specific acts for e-commerce

transactions and services rendered.”

cessed June 26, 2015).

III. Applicability of data protection acts

27 <http://www.planalto.gov.br/ccivil_03/_Ato2011-2014/2013/Decreto/D7962.htm> (last ac-

IV. Definitions of consumer and data

intervene in the consumer relations, shall be understood as consumer.”

commercial activity. 34 Fourthly, any person who is exposed to a commercial prac-

V. General guiding principles

Direito do Consumidor, n. 46, abril-junho 2003, pp. 77-119.

Of the physical exciting causes of insanity, intemperance in the use

A relation between pulmonary consumption and mental disease is

Chronic alcoholism produces disease of the small blood-vessels of

Cases have been reported of two persons being exposed to the

SYMPTOMATOLOGY AND COURSE.—The distinguishing symptoms of